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HomeMy WebLinkAboutAgenda Packet - July 18, 2011 - CCCONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JAMES MAKSHANOFF, ASSISTANT CITY MANAGER VIA: F.M. DELACH, CITY MANAGER 1 C"f/ DATE: JULY 18, 2011 SUBJECT: ASSIGNMENT AND ASSUMPTION OF FUNDING AND ACQUISITION AGREEMENT — CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO. 2005-1 RECOMMENDED ACTION It is recommended that the City Council approve and authorize execution of the Assignment and Assumption of Funding and Acquisition Agreement. BACKGROUND The City of Azusa completed the formation of the City of Azusa Community Facilities District No. 2005-1 (CFD) in 2006 in order to assist the then -master developer and owner of the Monrovia Nursery property, Azusa Land Partners (ALP) with public infrastructure financing, as provided -for in the Development Agreement. Since the creation of the CFD, the City of Azusa, as Issuer, has issued $71,150,000 of tax bonds for public infrastructure financing within the Rosedale project area, which ALP has partially utilized for the allowed purposes. Those allowed purposes, along with other rights and obligations, were detailed in a Funding and Acquisition Agreement approved as part of the CFD formation process, and was executed on August 1, 2005. See Exhibit B. Since the foreclosure of the Rosedale site, ALP is no longer the owner and developer. The new master developer is Rosedale Land Partners II (RLP), who desires to continue the development and construction of the Rosedale community to completion, and desires to assume all rights and obligations under the Funding and Acquisition Agreement. The attached Assignment and Assumption Agreement, Exhibit A, would accomplish the transfer of rights and obligations of the Funding and Acquisition Agreement from ALP to RLP. FISCAL IMPACT The fiscal impact of the Rosedale project was analyzed in a Fiscal Impact Study approved as part of the original Rosedale entitlements in 2003. U Approval of Assignment and Assumption of Funding and Acquisition Agreement 1 City Council Meeting of July 18, 2011 I ASSIGNMENT AND ASSUMPTION AGREEMENT OF FUNDING AND ACQUISITION AGREEMENT The Assignment and Assumption Agreement of Funding and Acquisition Agreement ("Assignment Agreement"), dated as of- 2011, among the CITY OF AZUSA for and on behalf of Community Facilities Dist ct No. 2005-1 (Rosedale) (the "Issuer"), AZUSA LAND PARTNERS, LLC, a Delaware limited liability company (referred to herein as the "Prior Developer"), and ROSEDALE LAND PARTNERS II, LLC, a Delaware limited liability company (referred to herein as the "New Developer"). WHEREAS, the New Developer has acquired all of the Prior Developer's property in Community Facilities District No. 2005-1 (the "CFD"); WHEREAS, the CFD consists of two improvement areas: Improvement Area No. 1 and Improvement Area No. 2; WHEREAS, the Issuer and the Prior Developer entered into the Funding and Acquisition Agreement, dated August 1, 2005 (the "Funding Agreement") in order to finance certain public capital facilities to be owned by the Issuer and other public agencies (the "Facilities"); WHEREAS, a portion of the Facilities were constructed by the Prior Developer and acquired by the Issuer (the "Prior Developer's Facilities") pursuant to the Funding Agreement; WHEREAS, a portion of the Facilities are to be constructed by the New Developer (the "New Developer's Facilities") and the New Developer desires to have the Issuer acquire the New Developer's Facilities pursuant to the terms of the Funding Agreement; WHEREAS, the Issuer has heretofore issued its $71,125,000 City of Azusa Conununity Facilities District No. 2005-1 (Rosedale) Improvement Area No. 1 2007 Special Tax Bonds (the "Bonds") within Improvement Area No. 1; WHEREAS, a portion of the proceeds of the Bonds have heretofore been expended by the Issuer to acquire the Prior Developer's Facilities; WHEREAS, the New Developer desires to have the Issuer acquire the New Developer's Facilities with the proceeds of the Bonds remaining on deposit with the trustee for the Bonds as of the Effective Date of this Assigiunent Agreement, any available special taxes in the CFD, and the proceeds of any bonds that may be issued in Improvement Area No. 2 (collectively, the "Funding Sources"), in the manner set forth in the Funding Agreement; WHEREAS, to accomplish the financing of the New Developer's Facilities, the Prior Developer, the New Developer, and the Issuer desire to enter into this Assignment Agreement; NOW THEREFORE, in consideration of the foregoing premises, the parties agree as follows: 4563.5.08001\5867143.3 1 I . Assigninew and Assttnz tion of Rights and Obligation . The Prior Developer hereby fully and unconditionally assigns to the New Developer all of its rights and obligations in and under the Funding Agreement arising after the "Effective Date" as hereinafter defined, including, but not limited to, the right to all of the Funding Sources to fnance the New Developer's Facilities. The New Developer accepts such assignment and hereby fully and unconditionally assumes all of the obligations, duties and liabilities of the Prior Developer in and under the Funding Agreement arising after the Effective Date and agrees to perform all such obligations in accordance with the terms thereof. The New Developer specifically disclaims any obligation or responsibility with respect to the construction or financing of any of the Prior Developer's Facilities. 2. Consent to Assignment and Assumption. The City for itself and on behalf of the Issuer hereby consents to the assignment to, and assumption by, the New Developer of the Funding Agreement. 3. Effective Date. The assignment of rights and assumption of obligations as set forth herein shall becot ne effective upon the date of execution and delivery of this Assignment Agreement, being �(� , 2011. 4. Notices, The New Developer notifies the Issuer that its address for receipt of notice under the Funding Agreement is as follows: Rosedale Land Partners II, LLC c/o Christopher Development Group, Inc. 19 Corporate Plaza Newport Beach, CA 92660 (949) 729-1229 (with a copy to, which copy shall not constitute notice to the New Developer): Robert M. Haight, Jr. Goodwin Procter LLP 601 South Figueroa Street, Suite 4100 Los Angeles, CA 90017 5. Construction. This Assignment Agreement shall be deemed to be a contract made and delivered in the State of California and shall be governed by and construed in accordance with the laws of the State of California. 6. Attomevs' Fees. In the event of a dispute or litigation concerning the enforcement, validity or interpretation of this Assignment Agreement, or any part hereof, the losing party shall pay all costs, charges, fees and expenses (including reasonable attorneys' fees and disbursements) paid or incurred by the prevailing party, regardless of whether any action or proceeding is initiated relative to such dispute and regardless of whether any such .litigation is prosecuted to judgment. For the purpose of this Assignment Agreement, the term "attorneys' fees" or "attorneys' fees and costs" shall mean the fees and expenses of counsel to the parties 45635 08001\5867143.3 2 hereto, which may include printing, photocopying, duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals, librarians and others not admitted to the Bar but performing services under the supervision of an attorney. 7. Execution in COUnterparts. This Assignment Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. [The balance of this page intentionally left blank] -15635.08001 \5867143,3 Issuer: CITY OF AZUSA, for itself and the CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO. 2005-1 (ROSEDALE) By: Name: Title: Prior Developer: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its: Administrative Member By: Chris Gibbs, President New Developer: ROSEDALE LAND PARTNERS II, LLC, a Delaware limited liability company By: CDG Rosedale hivestment, LLC, a Delaware limited liability company Its: Administrative Member Name: A�,,csz. 03Ah✓N0-.l Title: CAV 45635.0800115867143.3 4 EX,H 1131T 6 FUNDING AND ACQUISITION AGREEMENT Relating to CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO. 2005-1 (ROSEDALE) Between THE CITY OF AZUSA and AZUSA LAND PARTNERS, LLC August 1, 2005 FUNDING & ACQUISITION AGREEMENT COMMUNITY FACILITIES DISTRICT NO. 2005-1 (ROSEDALE) This FUNDING AND ACQUISITION AGREEMENT (the "Agreement") is entered into the 1St day of August, 2005 by and between the CITY OF AZUSA, a municipal organization organized and operating under the laws of the State of California (the "City"), and AZUSA LAND PARTNERS, LLC, a Delaware limited liability company (the "Developer") RECITALS (A) Developer owns and is currently developing approximately 1,250 single- family residences on that certain real property located on approximately 317 acres of land commonly known as the "Rosedale Project" (the "Property") located in the City of Azusa. (B) The City, is in the process of establishing a community facilities district with -two or more improvement areas (individually, an "Improvement Area" and, collectively, the "Improvement Areas") pursuant to the provisions of Chapter 2.5 (commencing with § 53311) of Part 1 of Division 2 of Title 5 of the Government Code, commonly known as the "Mello -Roos Community Facilities Act of 1982" (the "Act"), over and including the Property for the purpose of selling bonds, in one or more series within each Improvement Area (the "Bonds), in an amount sufficient to finance the acquisition of land and improvements thereon for public use, and the design, planning, engineering, installation, and construction of those certain public facilities and improvements, including utilities, to be owned and maintained by (i) the City (the "City Facilities"), and (ii) Azusa Unified School District (the "School District"), the Metropolitan Transit Authority ("MTA"), the Los Angeles County Sanitation District No. 22 (the "Sanitation District"), the City of Glendora ("Glendora") and other local agencies, as reasonably approved by the City (the "JCFA Facilities" and together with the City Facilities, the "Public RVPUB\MUM\682865.1 1 Facilities"). The Public Facilities are generally described in Exhibit "A" attached hereto, which Public Facilities are necessary to the development of the Property. Said community facilities district shall be known as, and each Improvement Area shall be a part of, the "City of Azusa Community Facilities District No. 2005-1 (Rosedale)" (the "District"). (C) Section 53313.5 of the Act provides that a community facilities district may finance the purchase of facilities completed after the adoption of the resolution of formation establishing the community facilities district if the facilities have been constructed as if they had been constructed under the direction and supervision, or under the authority of, the local agency whose governing body is conducting proceedings for the establishment of the District. (D) The purpose of this Agreement is to provide for the maintenance, design and the construction of the City Facilities, and the issuance and sale of the Bonds of the District to finance the acquisition of public land and public improvements, and the design, planning, engineering, financing, installation, and construction of the Public Facilities and expenses incidental thereto. (E) Capitalized terms used herein and not otherwise defined shall have the meaning set forth in Exhibit E attached hereto and by this reference herein incorporated. AGREEMENTS NOW, THEREFORE, in consideration of the preceding recitals and the mutual covenants hereinafter contained, the parties agree as follows: Section 1. Establishment of District. The City has initiated proceedings pursuant to the Act for the establishment of the District. Such proceedings include elections within each Improvement Area pursuant to. Sections 53326 and 53353.5 of the Act on (i) the question of the issuance of the Bonds for each Improvement Area of the District to finance the acquisition of RVPUB\MUM\682865.1 2 public land and public improvements, and the design, planning, engineering, construction management, and financing and the installation and construction or acquisition of the Public Facilities, (ii) the question of the annual levy of special taxes within each Improvement Area on those portions of the Property subject to the special taxes, for the payment of the principal of and interest on the Bonds of such Improvement Area and the annual administrative expenses of the City and the District in levying and collecting such special taxes, paying the principal and interest on such Bonds and providing for the registration, exchange and transfer of such bonds, including the fees of fiscal agents and paying agents, and any necessary replenishment of the reserve fund for such Bonds, together with paying the annual maintenance expenses financed by the District (if any), and (iii) the question of the establishment of an appropriations limit for each Improvement Area. From time to time prior to the issuance of the Bonds for an Improvement Area, at the written request of the Developer, and subject to the Developer advancing funds as determined by the City as necessary to pay all costs related thereto, the City shall use its best efforts to undertake proceedings which may be deemed necessary to amend the rate and method of apportionment applicable to such Improvement Area of the District or to amend the boundaries of such Improvement Area. Section 2. Sale of Bonds. The City may proceed, using its reasonable best efforts, as hereinafter provided, with the sale of the Bonds, in one or more series, for each of the Improvement Areas of the District in an aggregate principal amount not to exceed $120,000,000 and with an escalating debt service amortization schedule for each series of Bonds not to exceed thirty-five (35) years, for the purpose of raising an amount sufficient to pay for the acquisition of public land and public improvements, and the design, planning, engineering, construction RVPUB\MUM\682865.1 3 management, and financing, and the installation and construction or acquisition of the Public Facilities. In connection with the issuance of the first series of Bonds, the City on behalf of itself and the District shall establish criteria for the issuance of Additional Bonds of the District which meet the criteria of the financing policies of the City. The timing of the issuance and sale of the first series of Bonds and any Additional Bonds, the aggregate principal amount thereof, and the terms and conditions upon which they shall be sold shall be as set forth in this Agreement and otherwise as determined by the City in its reasonable discretion after consultation with the Developer. Not by way of limitation of the foregoing, the timing of the issuance and sale of the first series of Bonds and any Additional Bonds shall be as soon as reasonably practicable, as determined by the City in consultation with its financial advisor, underwriter and other consultants and counsel. Section 3. Advance of Certain Expenses. Pursuant a Landowner Deposit Agreement, dated November 1, 2004 between the City and Developer (the "Deposit Agreement"), Developer shall pay and advance all of the costs reasonably associated with the establishment of the District and the sale of the Bonds. Such costs to be paid or advanced by the Developer shall include the City's reasonable out-of-pocket expenses, if any, associated with engineering services provided by outside engineering consultants in connection with the establishment of the District and the determination of the sizing of the Bonds and the method of apportioning and levying the special taxes on the Property to pay the principal of and interest on the Bonds, and reasonable travel expenses of the City relating to the sale of the Bonds ("Reimbursable Expenses"). All of the Reimbursable Expenses paid or advanced by the City shall be reimbursed to the Developer from the uncommitted and unexpended deposits made by the Developer and/or the proceeds of the sale of the Bonds, as soon after receipt of the proceeds of the Bonds as is reasonably possible. RVPUB\MUM\682865.1 4 The City shall keep records of all Reimbursable Expenses advanced by the City pursuant to this Section 3 which records shall be available for inspection by Developer during regular business hours. The sole source of funds for reimbursement of any advance expenditure made by the City or the Developer shall be the uncommitted and unexpended deposits made by the Developer and/or proceeds of the Bonds. Section 4. Tax Requirements. The timing of the sale of the Bonds of any series for the District or' any Improvement Area therein, the nature of the investments in which the proceeds of the Bonds shall be invested, the duration of such investments, and the timing of the expenditure of such proceeds shall be as set forth in the Fiscal Agent Agreement and otherwise as determined by the City in its reasonable discretion; provided, that in all such matters City shall comply with the requirements of and limitations prescribed by the provisions of Sections 103 and 141 through 150 of the Internal Revenue Code of 1986 (the "Code"), as amended, and the implementing regulations of the United States Department of the Treasury. The City shall not be required to take any such action which in the opinion of the City's bond counsel could result in the Bonds being classified by the United States Department of the Treasury as "arbitrage bonds" or which could otherwise result in the interest on the Bonds being included in gross income for purposes of Federal income taxation. Should any change in or regulatory interpretation of any such requirement or limitation which may occur after the date of this Agreement require or necessitate, in the reasonable opinion of such bond counsel, any action on the part of the City in order to avoid such a classification or loss of tax exemption, the City shall notwithstanding any provision of this Agreement, forthwith take such action. In the event the City fails to comply with requirements set forth above in this Section 4, the City's liability is RVPUB\MUM\682865.1 5 limited to the special tax revenues generated by an Improvement Area of the District, as applicable. During the construction phase of the Project, the City and Developer shall meet on a regular basis, as agreed upon by both parties, to review facilities being constructed and ascertain the City's compliance with the Code. If changes in the Code disqualify certain facilities constructed by the Developer from being funded by the District, the Developer shall be solely liable for the costs of construction or acquisition of such facilities. Section 5. Amounts to be Included in Bonds. The City shall be authorized to include in the aggregate principal amount of the Bonds within each Improvement Area an amount sufficient to fund (i) reserve fund which does not exceed the amount permitted under the Code, (ii) capitalized interest on the Bonds for such period, not in excess of twenty-four (24) months, as the City, in consultation with the Developer, may determine is appropriate, (iii) the amount of the discount of the underwriter who purchases the Bonds, (iv) the Reimbursable Expenses, and (v) other typical and reasonable out-of-pocket expenses incurred by the City or the Developer in connection with the issuance and sale of the Bonds, including bond counsel fees, disclosure counsel fees, legal fees, fees of the bank which will act as fiscal agent for the Bonds, special tax consultant fees, fees and other costs of the appraisal and other fees and costs normally incidental to the sale of Bonds. Subject to the City's right of review and approval of specific costs as set forth in the next succeeding paragraph of this Section 5, the City shall also include with the aggregate principal amount of the Bonds for those items which are public facilities owned and operated by a public agency and not inconsistent with Exhibit "G" to the Development Agreement, the following: (i) all City development and building permit, application, plan RVPUB\MUM\682865.1 checking, inspection and other fees and charges, by whatever name called, that are attributable to the design, planning, engineering, construction management, installation, and construction of the Public Facilities that are payable out of the proceeds of the Bonds; and (ii) all other Developer costs and expenses not included in clause (i) that are reasonably determined by the City to equitably pay or reimburse Developer for costs and expenses incurred by it which are related to the establishment of the District and the design, planning, engineering, financing, and installation and construction or acquisition of the Public Facilities, including the construction management fee described in the definition of Actual Costs and the costs and expenses of consultants (e.g., DPFG), attorneys (e.g., Pillsbury Winthrop Shaw Pittman) and engineers. The City Manager or his/her designee, shall have the right to approve all of Developer's costs and expenses to be paid or reimbursed from proceeds of the Bonds subject to the following: (i) to the extent that Developer incurs costs that are eligible for financing by the District together with other costs that are not eligible for inclusion in the principal amount of the Bonds, the City will approve a fair allocation of eligible versus non -eligible costs; (ii) the City Manager or his/her designee shall approve or disapprove Developer's submittals for cost approvals within thirty (30) calendar days after receipt and, if any submitted costs are disapproved, he/she shall specify in writing the reasons therefor; and (iii) approval of Developer's submittals shall not be unreasonably withheld or conditioned. Developer shall be entitled to submit written requests to the City Manager or his/her designee for approval of costs to be paid or reimbursed with proceeds of the Bond on a periodic basis, as costs are incurred but not more frequently than monthly. Each such submittal shall be supported by adequate written documentation to justify the submittal, including as applicable, copies of relevant contracts, RVPUB\MUM\682865.1 7 invoices, evidence of payment, and such other supporting information as the City may reasonably require consistent with the terms of this Agreement. Section 6. Construction of Facilities. (a) Plans. To the extent that it has not already done so, the Developer shall cause ` plans to be prepared for the City Facilities (the "Plans"). The Developer shall obtain the written approval of the Plans in accordance with applicable ordinances and regulations of the City and/or the City entity that will own and operate the City Facilities. Copies of all Plans shall be provided by the Developer to the City Manager, or designee thereof, upon request therefore, and, in any event, as built drawings and a written assignment of the Plans for any City Facility shall be provided to the City prior to its formal acceptance of the City Facility. (b) Duty of Developer to Construct. All City Facilities to be acquired hereunder specified in Exhibit B hereto, as amended from time to time, shall be constructed by or at the direction of the Developer in accordance with the approved Plans. The Developer shall perform all of its obligations hereunder and shall. conduct all operations with respect to the construction of City Facilities in a good, workmanlike and commercially reasonable manner, with the standard of diligence and care normally employed by duly qualified persons utilizing their best efforts in the performance of comparable work and in accordance with generally accepted practices appropriate to the activities undertaken. The Developer shall employ at all times adequate staff or consultants with the requisite experience necessary to administer and coordinate all work related to the design, engineering, acquisition, construction and installation of the City Facilities to be acquired by the City from the Developer hereunder. The Developer shall be obligated (i) to construct and convey to the City (or other applicable governmental agency) all City Facilities and Discrete Components listed in Exhibit B RVPUB\MUM\682865.1 8 hereto, and (ii)' to use its own funds to pay all costs thereof in excess of the Purchase Prices thereof to be paid therefor hereunder. The Developer shall not be relieved of its obligation to construct each City Facility listed in Exhibit B hereto and Discrete Component and convey each such City Facility to the City (or other applicable governmental agency) in accordance with the terms hereof, even if, (i) because of the limitations imposed by Section 7(f) hereof, the Purchase Price for such City Facility is less than the Actual Cost, or cost to the Developer, of such City Facility, or (ii) there are insufficient funds in the Improvement Fund to pay the Purchase Price thereof, and, in any event, this Acquisition Agreement shall not affect any obligation of the Developer under any other agreement to which the Developer is a party or any governmental approval to which the Developer or any land within the District is subject, with respect to the City,Facilities required in connection with the development of the land within the District. Such obligation of the Developer to construct and convey such City Facilities, and pay the costs thereof in excess of available monies in the Improvement Fund, shall be an obligation of the Developer as a party to this Acquisition Agreement and not an obligation of the Developer in its capacity as an owner of any portion of the lands within the District. (c) Relationship to Public Works. This Agreement is for the acquisition by the City of the Facilities and payment for the Discrete Components thereof listed in Exhibit B, as amended from time to time, from moneys in the Improvement Fund and is not intended to be a public works contract. The City and the Developer agree that the City Facilities are of local, and not state-wide concern, and that the provisions of the California Pubic Contract Code shall not apply to the construction of the City Facilities. The City and the Developer agree that the Developer shall award all contracts for the construction of the City Facilities listed in Exhibit B RVPUB\MUM\682865.1 9 hereto, and that this Agreement is necessary to assure the timely and satisfactory completion of the City Facilities and that compliance with the Public Contract Code with respect to the City Facilities would work an incongruity and would not produce an advantage to the City or the District. Notwithstanding the foregoing, the Developer shall award all contracts for construction of the City, Facilities listed in Exhibit B hereto, as amended from time to time, to the lowest responsible bidder as determined by the Developer. The Developer shall solicit at least three bids for the construction of each City Facility, and the Developer or his designee shall open the bids actually received and read them aloud immediately following the submittal deadline. The bids for general contractors shall require that general contractors provide reasonable opportunity for local contractors to participate as subcontractors. Upon written request of the City Manager or his designee, the Developer shall provide an analysis of bids for construction of the City Facilities, constructed or to be constructed by or under the supervision of the Developer. The costs of materials shall be part of the contractors' bids for constructing the City Facilities. Nothing in this Agreement shall (i) require the Developer to publicly or informally bid for materials, or (ii) prevent the supply or sale of materials by the Developer to the contractors constructing the City Facilities. If requested in writing by the City, the Developer shall demonstrate to the City that such materials were obtained at reasonable prices considering the terms of delivery and other factors and shall not charge the City a premium for supplying such materials (but shall be entitled to recover the costs of procuring such materials). The Developer shall develop or cause to be developed and shall maintain or cause to be maintained a cost -loaded project schedule, using the critical path method, providing for all major project elements included in the construction of any City Facility to be acquired hereunder, so RVPUB\MUM\682865.1 10 that the whole project is scheduled in the most efficient manner. The Developer shall provide the City Manager with complete copies of the schedule and each update to the schedule for the City Manager or his designee to review. From time to time (expected to beat least weekly) at the request of the City Manager or his designee, the Developer shall meet and confer with City staff, consultants and contractors regarding matters arising hereunder with respect to the City Facilities and the progress in constructing and acquiring the same, and as to any other matter related to the City Facilities or this Agreement. The Developer shall advise the City Manager or his designee in advance of any coordination and scheduling meetings to be held with contractors relating to the City Facilities, in the ordinary course of performance of an individual contract. The City Manager or his designee shall have the right to be present at such meetings, and to meet and confer with individual contractors if deemed advisable by the City Manager or his designee to resolve disputes and/or ensure the proper completion of the City Facilities. (d) Independent Contractor. In performing this Agreement, the Developer is an independent contractor and not the agent or employee of the City or the District. Neither the City nor the District shall be responsible for making any payments to any contractor, subcontractor, agent, consultant, employee or supplier of the Developer. (e) Performance and Payment Bonds. The Developer agrees to comply with all applicable performance and payment bonding requirements of the City (and other applicable City entities and/or City utilities) with respect to the construction of the City Facilities. Performance and payment bonds shall not be required of the Developer to the extent moneys are available in the Improvement Fund to pay the Purchase Price, as defined in Section 7(c) below, of a City Facility provided that all contractors and/or subcontractors employed by the Developer in RVPUB\MUM\682865.1 11 connection with the construction of City Facilities shall provide a labor and materials and performance bonds which name the City as an additional insured. (f) Contracts and Change Orders. The Developer shall be responsible for entering into all contracts and any supplemental agreements (commonly referred to as "change orders") required for the construction of the City Facilities listed in Exhibit B hereto, as amended from time to time, and all such contracts and supplemental agreements shall be submitted to the City Manager or his designee. Prior approval of supplemental agreements by the City Manager shall only be required for such change orders which in any way materially alter the quality or character of the subject City Facilities, or which involve an amount equal to the greater of ten percent (10%) of the amount of the bid for the City Facility. The City expects that such contracts and supplemental agreements needing prior approval by the City Manager will be reasonably approved or denied (any such denial to be in writing, stating the reasons for denial and the actions, if any, that can be taken to obtain later approval) within ten (10) business days of receipt by the City Manager thereof. To the extent that a supplemental agreement, approved by the City Manager, or his designee, increases the Actual Cost of a City Facility, such increased cost may be payable as part of the Purchase Price of the related City Facility as provided in Section 7 hereof. (g) Time for Completion. The Developer agrees that this Agreement is for the benefit of the City and the Developer and, therefore, the Developer represents that it expects to complete the City Facilities and to have requested payment for the City Facilities under this Agreement within thirty-six (36) calendar months from the date of the closing of the series of Bonds the proceeds of which are to be used to finance the City Facilities. Any failure to complete the City RVPUB\MUM\682865.1 12 Facilities within said time period shall not, however, in itself, constitute a breach by the Developer of the terms of this Acquisition Agreement. The Developer agrees to use its good faith efforts to complete all City Facilities within thirty-six (36) calendar months from the date of closing of the series of the Bonds the proceeds of which are to be used to finance the City Facilities. Section 7. Acquisition and Payment of Facilities. (a) Inspection. No payment hereunder shall be made by the City to the Developer for a Public Facility or Discrete Component until the City Facility or Discrete Component has been inspected and found to be completed in accordance with the approved Plans by the City. Unless otherwise provided in a Supplement, the City shall make or cause to be made regular on-going site inspections of the City Facilities to be acquired hereunder. The Developer agrees to pay all inspection, permit and other similar fees of the City applicable to construction of the City Facilities. (b) Agreement to Sell and Purchase City Facilities. The Developer hereby agrees to sell the City Facilities listed in Exhibit B hereto, which may be amended from time to time by approval of the City Manager or his designee, to the City (or other applicable City agency that will own a City Facility), and the City hereby agrees to use amounts in the Improvement Fund to pay the Purchase Prices, as defined below, thereof to the Developer, subject to the terms and conditions hereof. The City shall not be obligated to finance the purchase of any City Facility until the City Facility is completed and the acceptance date for such City Facility has occurred; provided that the City has agreed to make payments to the Developer for certain Discrete Components shown on Exhibit B hereto, as such exhibit may be supplemented. The Developer acknowledges that the Discrete Components have been identified for payment purposes only, RVPUB\MUM\682865.1 13 and that the City (or other applicable public agency that will own a City Facility) shall not accept a City Facility of which a Discrete Component is a part until the entire City Facility has been completed. The City acknowledges that the Discrete Components do not have to be accepted by the City (or other applicable public agency that will own a City Facility) as a condition precedent to the payment of the Purchase Price therefor, but any such payment shall not be made until a Discrete Component has been completed in accordance with the plans therefor. The City shall not be obligated to pay the Purchase Price for any City Facility except from the moneys in the Improvement Fund. (c) Purchase Price. Purchase Price for each City Facility shall be equal to the Actual Cost of such City Facility, but subject to the limitations of this Section 7. Actual Cost means the substantiated cost of a City Facility, as defined in Exhibit E. (d) Payment Requests. In order to receive the Purchase Price for a completed City Facility or Discrete Component, inspection thereof under Section 7(a) shall have been made and the Developer shall deliver to the City Manager or his designee: (i) a Payment Request in the form of Exhibit D hereto for such City Facility or Discrete Component, together with all attachments and exhibits required by this Section 7(d) to be included therewith, and (ii) if payment is requested for a completed City Facility, (a) if the property on which the City Facility is located is not owned by the City (or other applicable public agency that will own such City Facility) at the time of the request, a copy of the recorded documents conveying to the City (or other applicable public agency that will own such City Facility) Acceptable Title to the real property on, in or over which such City Facility is located, as described in Section 8(a) hereof, (b) a copy of the recorded notice of completion of such City Facility filed, (c) to the extent paid for with the proceeds of the Bonds, an assignment to the District of any reimbursements that may RVPUBWI UM\682865. ] 14 be payable with respect to the City Facility, such as City or private utility reimbursements, and (d) an assignment of the warranties and guaranties for such City Facility, as described in Section 8(e) hereof, in a form acceptable to the City. (e) Processing PayMent Re uests. Upon receipt of a Payment Request (and all accompanying documents), the City Manager or his designee shall conduct a review in order to confirm that such request is complete, that such City Facility or Discrete Component identified therein was constructed in accordance with the Plans therefore, and to verify and approve the Actual Cost of such City Facility or Discrete Component specified in such Payment Request. The City Manager or his designee shall also conduct such review as is required in his/her discretion to confirm the matters certified in the Payment Request. The Developer agrees to cooperate with the City Manager or his designee in conducting each such review and to provide the City Manager or his designee with such additional information and documentation as is reasonably necessary for the City Manager or his designee to conclude each such review. Within ten (10) business days of receipt of any Payment Request, the City Manager or his designee expects to review the request for completeness and notify the Developer whether such Payment Request is complete, and, if not, what additional documentation must be provided. If such Payment Request is complete, the City Manager or his designee expects to provide a written approval or denial (specifying the reason for any denial) of the request within 30 days of its submittal. If a Payment Request seeking reimbursement for more than one City Facility or Discrete Component is denied, the City Manager or his designee shall state whether the Payment Request is nevertheless approved and complete for any one or more City Facilities or Discrete Component and any such City Facilities or Discrete Component shall be processed for payment under Section 7(f) notwithstanding such partial denial. RVPUB\MUM\682865.1 15 (f) Payment. Upon approval of the Payment Request by the City Manager or his designee, the City Manager or his designee shall sign the Payment Request and forward the same to the Finance Director of the City. Upon receipt of the reviewed and fully signed Payment Request, the Finance Director of the City shall, within the then current City financial accounting payment cycle but in any event within fifteen (15) business days of receipt of the approved Payment Request, cause the same to be paid by the Fiscal Agent under the applicable provisions of the Fiscal Agent Agreement, to the extent of funds then on deposit in the Improvement Fund. Any approved Payment Request not paid due to an insufficiency of funds in the Improvement Fund shall be paid promptly from the Surplus Taxes Fund or from the Improvement Fund promptly following the deposit into the Improvement Fund of proceeds of any investment earnings, Additional Bonds, escrowed funds or other amounts transferred to the Improvement Fund under the terms of the Fiscal Agent Agreement. The Purchase Price paid hereunder for any City Facility or Discrete Component shall constitute payment in full for such City Facility or Discrete Component, including, without limitation, payment for all labor, materials, equipment, tools and services used or incorporated in the work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of such City Facility or Discrete Component as specified in the Plans. (g) Timing of Re uisitions. The City and the Developer acknowledge that (i) to the extent the Developer has constructed and City or other Public Agency has accepted (for payment purposes) certain Public Facilities (including City Facilities) the Developer may submit Payment Requests and JCFA Facilities Payment Request for such Public Facilities for reimbursement for the proceeds from the initial series issuance of the Bonds; (ii) the Developer will be constructing RVPUB\MUM\682865.1 16 Public Facilities prior to the issuance of Additional Bonds the proceeds of which will be used to reimburse the Developer for those Public Facilities not funded from the initial series of the Bonds; (iii) the Developer may be submitting Payment Requests and JCFA Facilities Payment Requests to the City in advance of such an issuance of the Additional Bonds, with knowledge that there may be insufficient funds available in the Improvement Fund and the Surplus Taxes Fund for reimbursement; (iv) the Public Facilities that are the subject of the Payment Requests and the JCFA Facilities Payment Requests submitted when there are insufficient proceeds will be inspected and reviewed by the City as set forth in this Agreement and that such Payment Requests and the JCFA Facilities Payment Requests will be reviewed by the City and, if appropriate, approved for payment from the proceeds of the Bonds or the Surplus Taxes Fund; and (v) the payment for any Payment Requests and the JCFA Facilities Payment Requests approved in the preceding manner will be deferred until the date, if any, on which there are amounts in the Improvement Fund or the Surplus Taxes Fund to make all or part of such payment, at which time the City will direct the Fiscal Agent to wire transfer (or pay in another mutually acceptable manner) to the payee identified in such Payment Request or JCFA Facilities Payment Request. The Payment Requests and the JCFA Facilities Payment Requests may be (i) paid in increments as funds become available in the Improvement Fund or the Surplus Taxes Fund, and (ii) paid out of the proceeds of any series of Bonds or special taxes collected in any Improvement Area. The Developer may pay for the Public Facilities prior to the issuance of Bonds or when there are insufficient funds in the Improvement Fund to reimburse the Developer for such payment. Any Public Facilities paid by the Developer shall be made with the understanding that such Public Facilities shall be reimbursed from the proceeds of the Bonds if, and when, Bonds RVPUB\MUM\682865.1 17 are issued or there are otherwise sufficient funds in the applicable Improvement Fund or amounts in the Surplus Taxes Fund. The payment by the Developer- of the costs of Public Facilities prior to the issuance of Bonds or when there are insufficient funds in the Improvement Fund or amounts in the Surplus Taxes Fund to reimburse the Developer for such payment, shall not be construed as a dedication or gift of the Public Facilities, or a waiver of reimbursement of such Public Facilities. (h) Restrictions on Payments. Notwithstanding any other provisions of this Agreement, the following restrictions shall apply to any payments made to the Developer under Sections 7(b) and 7(f) hereof: A. Amounts of Pa!Ments. Subject to the following paragraphs of this Section 7(h), payments for each City Facility or Discrete Component will be made only in the amount of the Purchase Price for the respective City Facility or Discrete Component. Nothing herein shall require the City in any event (i) to pay more than the Actual Cost of a City Facility or Discrete Component, or (ii) to make any payment beyond the available funds in the Improvement Fund or the Surplus Taxes Fund. The parties hereto acknowledge and agree that all payments to the Developer for the Purchase Prices of City Facilities or Discrete Component are intended to be reimbursements to the Developer for monies already expended or for immediate payment by the Developer (or directly by the City) to third parties in respect of such City Facilities or Discrete Component. B. Joint or Third Party Payments. The City may make any payment j ointly to the Developer and any mortgagee or trust deed beneficiary, contractor or supplier of materials, as their interests may appear, or solely to any such third party, if the Developer RVPUB\MUM\682865.1 18 so requests the same in writing or as the City otherwise determines such joint or third party payment is necessary to obtain lien releases. C. Withholding Payments. The City shall be entitled, but shall not be required, to withhold any payment hereunder for a City Facility or Discrete Component if the Developer or any Affiliate is delinquent in the payment of ad valorem real property taxes, special assessments or taxes, or Special Taxes levied in the District. In the event of any such delinquency, the City shall only make payments hereunder directly to contractors or other third parties employed in connection with the construction of the City Facilities or Final Discrete Component or to any assignee of the Developer's interests in this Agreement (and not to the Developer or any Affiliate), until such time as the Developer provides the City Manager with evidence that all such delinquent taxes and assessments have been paid. The City shall withhold final payment for any City Facility or Final Discrete Component constructed on land, until Acceptable Title to such land is conveyed to the City or other Public entity that will own the respective City Facility or other Public Facility, as described in Section 8 hereof. The City shall be entitled to withhold payment for any City Facility or Discrete Component hereunder to be owned by the City until: (i) the City Manager or his designee determines that the City Facility is ready for its intended use, (ii) the Acceptance Date for the City Facility has occurred and to the requirements of Section 8, if applicable to such City Facility or Discrete Component, have been satisfied, (iii) a Notice of Completion executed by the Developer, in a form acceptable to the City Manager or his designee, has been recorded for the City Facility and general lien releases conditioned solely upon RVPUB\MUM\682865.1 19 payment from the proceeds of the Bonds to be used to acquire such City Facility have been submitted to the City Manager for the City Facility. The City hereby agrees that the Developer shall have the right to post or cause the appropriate contractor or subcontractor to post a bond with the City to indemnify it for any losses sustained by the City because of any liens that may exist at the time of acceptance of such a City Facility, so long as such bond is drawn on an obligor and is otherwise in a form acceptable to the City Manager or his designee. The City shall be entitled to withhold payment of a Public Facility (or the Final Discrete Component or such Public Facility) to be owned by other governmental entities, until the Developer provides the City Manager with evidence that the governmental entity has accepted dedication and/or title to the Public Facility, provided, however that any payment (including progress payments) to the Developer for a Public Facility shall be governed by the JCFA between the Developer and the governmental entity. If the City Manager or his designee determines that a City Facility is not ready for intended use under (i) above, the City Manager or his designee shall so notify the Developer as soon as reasonably practicable in writing specifying the reason(s) therefor. Nothing in this Agreement shall be deemed to prohibit the Developer from contesting in good faith the validity or amount of any mechanics or materialmans lien nor limit the remedies available to the Developer with respect thereto so long as such delay in performance shall not subject the City Facilities or Discrete Component to foreclosure, forfeiture or sale. In the event that any such lien is contested, the Developer shall only be required to post or cause the delivery of a bond in an amount equal to the amount in RVPUB\MUM\682865.1 20 dispute with respect to any such contested lien, so long as such bond is drawn on an obligor and is otherwise in a form acceptable to the City Manager or his designee. Nothing in this Section 7(h) shall prevent the payment for Discrete Components as described in Section 7(b). D. Rete21tio1i. The City shall withhold in the Improvement Fund an amount equal to ten percent (10%) of the Purchase Price of each City Facility or Discrete Component to be paid hereunder. Notwithstanding the foregoing,. at such time as one- half of the respective work has been completed and progress on the City Facility or Discrete Component is satisfactory to the City Manager or his designee, no further retention will be made (so that it is expected that, upon completion of any City Facility, a total of ten percent (10%) will have been retained). Any such retention will be released to the Developer upon final completion and acceptance of the related City Facility (or Final Discrete Component thereof). Notwithstanding the foregoing, the Developer shall be entitled to payment of any such retention upon the completion and acceptance of a City Facility, if a maintenance or warranty bond is posted in accordance with Section 8 hereof. Payment of any retention shall also be contingent upon the availability of monies in the Improvement Fund therefore. No retention shall apply if the Developer proves to the City Manager or his designee's satisfaction that the Developer's contracts for the City Facilities or Discrete Component provide for the same retention as herein provided, so that the Purchase Price paid for the City Facility or Discrete Component is at all times net of the required retention. RVPUB\MUM\682865.1 21 E. Frequency. Unless otherwise agreed to by the City Manager, no more than one Payment Request shall be submitted by the Developer in any calendar month. (i) Defective or Nonconforming Work. If any of the work done or materials furnished for a City Facility are found by the City Manager or his designee to be defective or not in accordance with the applicable Plans: (i) and such finding is made prior to payment for the Purchase Price of such City Facility hereunder, the City may withhold payment therefore until such defect or nonconformance is corrected to the satisfaction of the City Manager or his designee, or (ii) and such finding is made after payment of the Purchase Price of such City Facility, the City and the Developer shall act in accordance with the City's standard specification for City works construction, which are available in the City's Public Works Department. 0) Modification of Discrete Components. The following provisions shall be applicable to each Improvement Area separately. Nothing in this section 0) shall prevent the qualified electors within an Improvement Area from modifying the Facilities and Discrete Components (or other aspects of the Improvement Area) pursuant to the resolution of consideration provisions of Article 3 of the Act. A. Prior to the Issuance of the First Series of Bonds for a« hii rovcment Area. The City and the Developer acknowledge that (i) the Developer will be constructing City Facilities in advance of the issuance of the first series of Bonds for an Improvement Area, and (ii) this Agreement will be approved and executed in advance of the issuance of the first series of Bonds for an Improvement Area so that the Developer understands how it is to construct the City Facilities to make them eligible for reimbursement from the proceeds of the Bonds. Because this Agreement will be executed prior to the date that the first series of Bonds for an Improvement Area are RVPUB\MUM\682865.1 22 issued, the amount of proceeds of the first series of Bonds cannot be known at this time with any certainty. Consequently, at this time, the description of the City Facilities listed in Exhibit B are preliminary in nature. The City and the Developer agree that Exhibit B may be modified at any time upon the written consent of each party. The City Manager or his designee is hereby delegated the authority to approve any revisions to Exhibit B attached hereto without requiring City Council action. Once such written approval is executed by the City and the Developer, the revised Exhibit B shall be deemed part of this Agreement and shall operate for all purposes thereafter. B. SubsNuent to the Issuance of the First Series of Bonds for an Improvement Area. Following the issuance of the first series of Bonds for an Improvement Area, the description of the Discrete Components set forth in Exhibit B for an Improvement Area for which Bonds have been issued shall be modified only as set forth in this subparagraph (B). Upon written request of the Developer, the City Manager shall consider modification of the description of any Discrete Component listed in Exhibit B without further action by the City Council. Any such modification shall be subject to the written approval of the City Manager, and shall not diminish the overall City Facilities to be provided by the Developer hereunder (in a material way such that the change invalidates any of the assumptions used in the appraisal conducted to sell the Bonds). It is expected that any such modification will be solely for purposes of dividing up the work included in any Discrete Component for purposes of acceptance and payment, for example: (i) separation of irrigation and landscaping from other components of a Discrete Component, (ii) modifications to allow for payment for roadway improvements prior to completion of the top course of paving, or (iii) division of utility RVPUB\MUM\682865.1 23 construction by utility work order. In most instances, the City Manager will only approve modifications for payment purposes when there will be an unusual period of time between the completion and acceptance of such divided work or to better implement the phasing of the overall construction of the City Facilities; but no such circumstances shall this subparagraph in any way obligate the City Manager to approve such modification. In addition to the foregoing, the description of the City Facilities and Discrete Components may be modified by adding additional City Facilities in connection with the issuance of any Additional Bonds. Section 8. Ownership cmd Transfer of Facilities. (a) Facilities to be Ownccl by the City — Conve ance of Land and Easements to Cit . Acceptable Title to all property on, in or over which each City Facility to be acquired by the City will be located, shall be deeded over to the City by way of grant deed, quitclaim, or dedication of such property, or easement thereon, if such conveyance of interest is approved by the City as being a sufficient interest therein to permit the City to properly own, operate and maintain such City Facility located therein, thereon or thereover, and to permit the Developer to perform its obligations as set forth in this Agreement. The Developer agrees to assist the City in obtaining such documents as are required to obtain Acceptable Title. Completion of the transfer of title to land shall be accomplished prior to the payment of the Purchase Price for a City Facility (or the Final Discrete Component thereof) and shall be evidenced by recordation of the acceptance thereof by the City Council or the designer thereof. (b) Facilities to be Owned by the City — Title Evidence. Upon the request of the City, the Developer shall furnish to the City a preliminary title report for land with respect to City Facilities to be acquired by the City and not previously dedicated or otherwise conveyed to the RVPUB\MUM\682865.1 24 City, for review and approval at least fifteen (15) calendar days prior to the transfer of Acceptable Title of a City Facility to the City. The City shall approve the preliminary title report unless it reveals a matter which, in the judgment of the City, could materially affect the City's use and enjoyment of any part of the property or easement covered by the preliminary title report. In the event the City does not approve the preliminary title report, the City shall not be obligated to accept title to such City Facility or pay the Purchase Price for such City Facility (or the Final Discrete Component thereof) until the Developer has cured such objections to title to the satisfaction of the City. (c) Facilities Constructed on Private Lands. If any City Facilities to be acquired are located on privately -owned land, the owner thereof shall retain title to the land and the completed City Facilities until acquisition of the City Facilities under Section 7 hereof. Pending the completion of such transfer, the Developer shall not be entitled to receive any payment for any such City Facility or the Final Discrete Component thereof. The Developer shall, however, be entitled to receive payment for the Discrete Components (other than the last Discrete Component) upon making an irrevocable offer of dedication of such land in form and substance acceptable to the City Manager. Notwithstanding the foregoing, upon written request of the City before payment for any Final Discrete Component of such City Facility, the Developer shall convey or cause to be conveyed Acceptable Title thereto in the manner described in Section 8(a) and 8(b) hereof. (d) Facilities Constructed on City Land. If the City Facilities to be acquired are on land owned by the City, the City hereby grants to the Developer a license to enter upon such land for purposes related to the construction (and maintenance pending acquisition) of the City RVPUB\MUM\682865.1 25 Facilities. The provisions for inspection and acceptance of such City Facilities otherwise provided herein shall apply. (e) Public Facilities to be Acquired by Other Public Agencies. The City has, or will, execute Joint Community Facilities Agreements with the School District, MTA, the Sanitation District, Glendora and other local public agencies (collectively the "JCFAs," each individually a "JCFA"). The JCFAs allow the financing of City Facilities. Accordingly, the proceeds of the Bonds in any Improvement Area may be used to pay such Public Facilities at any time, either directly to the applicable agency upon the direction of the Developer, or in reimbursement as discussed herein. Any Public Facilities paid by the Developer may be eligible for reimbursement from the proceeds of the Bonds. The Developer may request from the proceeds of Bonds for reimbursement or direct payment of Public Facilities that are the subject of the. JCFAs by executing and submitting a payment request in the form of Exhibit D attached hereto (the "JCFA Facilities Payment Request"). In the case of a reimbursement for a Public Facility, the Developer shall submit proof of the payment of such Public Facilities, which may be a written confirmation from another agency that such Public Facility has been constructed in accordance with the local agency's policies and inspected by the local agency, and paid for by the Developer ("Proof of Completion and Payment"). Upon receipt of such JCFA Facilities Payment Request and Proof of Completion and Payment, the City shall review the request and if determined to be an item eligible to be paid from Bond Proceeds direct the Fiscal Agent to wire transfer (or pay in another mutually acceptable manner) to the payee identified in such JCFA Facilities Payment Request such requested funds to the extent of funds on deposit in the Improvement Fund designated by the Developer or the Surplus Taxes Fund. The provisions of Section 7(g) apply to the Public Facilities to be acquired by other local agencies pursuant to the JCFAs. RVPUB\MUM\682865.1 26 (f) Maintenance and Warranties. The Developer shall maintain each City Facility and Discrete Components thereof in good and safe condition until the Acceptance Date or until such other time as specified in the applicable JCFA. Prior to the Acceptance Date, the Developer shall be responsible for performing any required maintenance on any completed City Facility and Discrete Components thereof. On or before the Acceptance Date of the City Facility, the Developer shall assign to the City, or other public agency, as applicable, all of the Developer's rights in any warranties, guarantees, maintenance obligations or other evidence of contingent obligations of third persons with respect to such City Facility. The Developer shall provide a warranty bond reasonably acceptable in form and substance to the City Manager for one-year after the Acceptance Date, to insure that defects, which appear within said period will be repaired, replaced, or corrected by the Developer, at its own cost and expense, to the satisfaction of the City Manager. The Developer shall maintain or cause to be maintained each Public Facility and Discrete Components thereof to be owned by another public agency (including the repair and replacement thereof) for the period of time and in the form specified in the applicable JCFA. The Developer shall commence to repair, replace or correct any such defects within thirty (30) days after written notice thereof by the City to the Developer, and shall complete such repairs, replacement or correction as soon as practicable. After such one-year period, the warranty bond shall be released. From and after the Acceptance Date, the City shall be responsible for maintaining all City Facilities. Any warranties, guarantees or other evidences of contingent obligations of third persons with respect to the City Facilities to be acquired by the City shall be delivered to the City Manager as part of the transfer of title. (g) Discrete Corn ponents. Nothing in this Section 8 shall prevent payment for Discrete Components as described in Section 7(b). RVPUB\MUM\682865.1 27 Section 9. Surplus Special Taxes. Pursuant to the Development Agreement dated May 27, 2004, by and between the City and the Developer (the "Development Agreement"), the City shall levy special taxes against developed property within each Improvement Area at 100% of the assigned special tax rate. In addition, the City shall establish in each Fiscal Agent Agreement governing the Bonds an interest-earning "Surplus Taxes Fund" and, in each Fiscal Year, all special tax revenues not needed to pay debt service on the applicable series of Bonds, replenish the reserve fund and pay administrative costs shall be deposited in the appropriate Surplus Taxes Fund. Amounts in each Surplus Taxes Fund shall be used to pay the costs of the construction and acquisition the Public Facilities to the extent that the proceeds of the Bonds are, for any reason, insufficient at the time that a request for payment is made. Section 10. Surplus Bond Proceeds. In the event that any surplus proceeds of the Bonds remain in the Improvement Fund after all of the Public Facilities have been completed, and acquired pursuant to this Agreement, which shall be evidenced by a written notice from the Developer that no additional requisitions for payment will be submitted, said surplus shall be applied to debt service on the Bonds in the manner provided in the Fiscal Agent Agreement. Interest earnings on funds deposited in the Improvement Fund shall be retained therein and used for the purposes thereof. Section 11. lndemrrificatioli. hisurallce. Developer shall indemnify and hold harmless the City and the District from any and all claims, actions, liability, damages and costs arising out of Developer's performance of its duties and responsibilities as construction manager. To secure its indemnification obligation, Developer shall obtain and maintain throughout the period of its construction management services a broad form comprehensive liability policy of insurance in a form and with coverages acceptable to the City, having a single aggregate limit of liability as to RVPUB\MUM\682865.1 28 all coverages provided thereby in the amount of $4,000,000, and naming the City, the District and their officers, and employees as additional insureds. Developer shall provide to the City a certified copy of the policy for such insurance or a certificate of such insurance coverage in a form satisfactory to the City. Any such certificate of insurance shall include an endorsement providing that the City, the District, their officers and employees, and to the extent insurance coverage for such purpose is commercially available, their agents, are additional insureds under the comprehensive general liability policy, and shall provide that the policy may only be canceled upon 30 days' advance written notice to the City. Developer shall also maintain throughout the period of its construction management services workers' compensation insurance as required by the laws of the State of California. Section 12. Representatinris. Cnvei7,iiits and Warranties of the Developer. The Developer represents and warrants for the benefit of the City as follows: A. Organization. The Developer is a limited liability company duly organized and validly existing under the laws of the State of Delaware, is in good standing in the State, and has the power and authority to own its properties and assets and to carry on its business as now being conducted and as now contemplated. B. Ati liority. The Developer has the power and authority to enter into this Agreement, and has taken all action necessary to cause this Agreement to be executed and delivered, and this Agreement has been duly and validly executed and delivered by the Developer. RVPUB\MUM\682865.1 29 C. Binding Obligation. tion. This Agreement is a legal, valid and binding obligation of the Developer, enforceable against the Developer in accordance with its terms, subject to bankruptcy and other equitable principles. D. Compliance with Laws. The Developer shall not with knowledge commit, suffer or permit any act to be done in, upon or to the lands of the Developer in the District or the City Facilities in violation of any law, ordinance, rule, regulation or order of any governmental authority or any covenant, condition or restriction now or hereafter affecting the lands in the District or the City Facilities. E. Requests for Payment. The Developer represents and warrants that (i) it will not request payment from the City for the acquisition of any improvements that are not part of the Public Facilities, and (ii) it will diligently follow all procedures set forth in this Agreement with respect to the Payment Requests and the JCFA Facilities Payment Requests. F. Financial Records. Until the final acceptance of the City Facilities, the Developer covenants to maintain proper books of record and account for the construction of the City Facilities and all costs related thereto. Such accounting books shall be maintained in accordance with generally accepted accounting principles, and shall be available for inspection by the City or its agents at any reasonable time during regular business hours on reasonable notice. G. Prevailing Wages. The Developer covenants that, with respect to any contracts or subcontracts for the construction of the City Facilities to be acquired from the Developer hereunder, it will assume complete compliance with any applicable law or regulation for the payment of prevailing wages for such construction. The Developer RV PUB\MUM\682865.1 30 shall be solely responsible for determining whether payment of prevailing wages and other federal and California laws, rules and regulations are applicable for any Public Facility, H. Plans. The Developer represents that it has obtained or will obtain ` approval of the Plans for the City Facilities to be acquired from the Developer hereunder from all appropriate departments of the City and from any other City entity or City utility from which such approval must be obtained. The Developer further agrees that the City Facilities to be acquired from the Developer hereunder have been or will be constructed in full compliance with such approved plans and specifications and any supplemental agreements (change orders) thereto, as approved in the same manner. I. Land Sales. The Developer agrees that in the event that it sells any land owned by it within the boundaries of the District the Developer will (i) notify the purchaser in writing prior to the closing of any such sale of the existence of this Agreement and the Developer's rights and obligations hereunder with respect to the construction of and payment for the City Facilities, (ii) notify the purchaser in writing of the existence of the District and the special tax lien in connection therewith, and otherwise comply with any applicable provision of Section 53341.5 of the Act, and (iii) notify the City in writing of the sale, indicating the legal description (or County Assessor's parcel number) of the property sold and the purchaser of the property. J. Additional Information. The Developer agrees to cooperate with all reasonable written requests for nonproprietary information by the original purchasers of the Bonds or the City related to the status of construction of improvements within the RVPUMM M\682865.1 31 District, the anticipated completion dates for future improvements, and any other matter material to the investment quality of the Bonds. K. Continuing Disclosure. The Developer agrees to comply with all of its obligations under any continuing disclosure agreement executed by it in connection with the offering and sale of any of the Bonds. Section 13. independent Contractor. In performing its construction management services, Developer shall be an independent contractor, and this Agreement shall not and does not create a joint venture or partnership between the City and Developer. The City shall have no responsibility or liability for the payment of any amount to any employee or subcontractor of Developer. Section 14. Special Taxes. The City shall annually thereafter, as appropriate, levy and L. collect special taxes on that portion of the Property subject to the Special Taxes, in an amount sufficient to pay the principal and interest coming due on the Bonds in each year plus administrative expenses, together with an annual levy for the maintenance portion of the District, if any. For each Improvement Area, such special taxes shall be levied at the rate or rates and in accordance with the Rate and Method of Apportionment of Special Tax relating to the Improvement Area of the District. The City may include in the amount of the annual levy of special taxes on the Property in any year an amount sufficient to replenish the reserve fund for the Bonds of that Improvement Area, the fees associated with the administration of debt service on the Bonds of that Improvement Area, and to pay the City's reasonable administrative expenses in connection with the levy and collection of such Special Taxes within that Improvement Area. Notwithstanding the foregoing and in accordance with the RMA, the City agrees that special taxes shall be levied on Developed Property (as defined in the RMA) in each RVPUB\MUM\682865.1 32 Improvement Area to pay directly for Public Facilities if Bonds secured by such Special Taxes have not previously been issued. Such Special Taxes levied and collected by the City and any prepayment of Special Taxes collected prior to the issuance of Bonds of an Improvement Area shall be held by the City and disbursed to pay the Purchase Price of Public Facilities and, upon the issuance of Bonds, such Special Taxes still held by the City shall be deposited in the Improvement Fund. Section 15. Disclosure of Special Taxes. (a) From and after the date of this Agreement, Developer and its successors and assigns shall give a "Notice of Special Tax" (as defined in Section 15(b) below) to each prospective purchaser of a parcel in the District and shall deliver a fully executed copy of each notice to District. Developer and its successors and assigns shall (i) maintain records of each Notice of Special Tax for a period of five (5) years, and (ii) shall provide copies of each notice to District promptly following the giving of such notice. Developer and its successors and assigns shall include the Notice of Special Tax in all Developer's and its successors and assigns' applications for Final Subdivision Reports required by the Department of Real Estate ("DRE") which are filed after the effective date of this Agreement. Developer and its successors and assigns shall require, as a condition precedent to close an escrow for the sale of real property to a developer acquiring lots (a "Residential Developer"), that such Residential Developer shall (i) maintain records of each Notice of Special Tax for a period of five (5) years, (ii) provide copies of each notice to District promptly following the giving of such notice, and (iii) include the Notice of Special Tax in all of such Residential Developer's applications for Final Subdivision Reports required by DRE. RVPUB\MUM\682865.1 33 (b) With respect to any parcel, the term "Notice of Special Tax" means a notice in the form prescribed by California Government Code Section 53341.5 which is calculated to disclose to the purchaser thereof (i) that the property being purchased is subject to the special tax of the Improvement Area of the District; (ii) the land use classification of such property; (iii) the maximum annual amount of the special tax and the number of years for which it will be levied; (iv) if available at the time such notice is delivered, an indication of the amount of special tax to be levied on such property for the following fiscal year; and (v) the types of facilities or services to be paid or with the proceeds of the special tax. (c) District will file with the Los Angeles County Recorder a notice of special tax lien that gives notice of the existence of the District and the levy of the special tax on property within the Improvement Area of the District for the benefit of subsequent Developers, pursuant to requirements of Section 3114.5 of the Streets and Highways Code. (d) Information Sheet and Sample Property Tax Bill. Developer and its successors and assigns shall prepare, in a form reasonably acceptable for the City, and place in their sales office a sample property tax bill which shows (i) the special tax levied for public facilities subject to an annual escalator of 2% and (ii) the special tax levied for public services, subject to an annual escalator of 2%, in a form approved by District. Developer and its successors and assigns shall provide prospective purchasers of homes an information sheet in the sales office in the form set forth in Exhibit F, which is available for such purchasers to take with them. In addition, Developer shall prominently display a notification of Special Tax. Section 16, Termination. If for any reason the City is unable to sell the first series of Bonds (regardless of which Improvement Area), by July 1, 2008, in accordance with this Agreement, this Agreement shall be terminated. RVPUB\MUM\682865.1 34 Section 17. Binding on Community Facilities District. The District shall automatically become a party to this Agreement, and all provisions hereof which apply to the City shall also apply to the District. The City Council of the City, acting as the legislative body of the District, shall perform all parts of this Agreement which require performance on the part of the District. Section 18. Assignment. Developer shall not assign this Agreement or any right or obligations hereunder without the express prior written approval of the City. As a condition of such approval, the City may require proof of the financial responsibility and experience of a proposed assignee to undertake and perform the duties and responsibilities of Developer under this Agreement. The City's approval of an assignment of this Agreement and the rights and duties of Developer hereunder shall not be unreasonably withheld, delayed, or conditioned. Section 19. Prompt Action. All consents, approvals and determinations required of either the City or Developer pursuant to this Agreement shall be promptly given or made, and shall not be unreasonably withheld or conditioned. Section 20. General. This Agreement and the Deposit Agreement contain the entire agreement between the parties with respect to the matters herein provided for. This Agreement may only be amended by a subsequent written agreement signed on behalf of both parties. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties. This Agreement shall be construed and governed by the Constitution and laws of the State of California. Should either party to this Agreement commence a court action or proceeding against the other party with respect to this Agreement or the design and acquisition or construction of the Public Facilities, the party prevailing in such action or proceeding shall be entitled to receive from the losing party its attorney's fees, expert witness fees, court costs and RVPUB\ MUM\682865.1 35 other costs incurred by it in prosecuting or defending such action or proceeding. The captions of the sections of this Agreement are provided for convenience only, and shall not have any bearing on the interpretation of any section hereof. This Agreement may be executed in several counterparts, each of which shall be an original of the same agreement. RVPUB\MUM\682865.1 36 IN WITNESS WHEREOF, the parties have caused this agreement to be signed as of the date first above written. DEVELOPER AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its: Administrative Member By: C 610'e - Chris Gibbs, President CITY OF AZUSA By:� R4 City Manager ATTES era Mendoza City Clerk RVPUB\MUM\682865.1 37 EXHIBIT A DESCRIPTION OF PUBLIC FACILITIES The Public Facilities that are the subject of the Agreement include those facilities related to the development of the Rosedale Project including both those facilities to be owned, operated and maintained by the City of Azusa (the "City Facilities") and those to be owned, operated and maintained by other local agencies (the "JCFA Facilities"). City Facilities include(t): ■ Citywide Traffic Facilities in satisfaction of Traffic Mitigation Fee; • Excavation/Grading, Clearing/Grubbing, and Right of Way Acquisition Costs; • Backbone and In -tract Street, Traffic Signal and Bridge Improvements; • Backbone and In -tract Storm Drain, Sewer, and Water/Reservoir Improvements; • Backbone and In -tract Park & Landscaping Improvements; • Backbone and In -tract Dry Utilities JCFA Facilities include('): I. Azusa Unified School District ("AVSD") Facilities: The fair market value of the School Site; costs to develop the School Site; K-8 School (i.e., a K-8 school to house at least 600 students), which shall include furniture, fixtures and equipment; the School portion of the Great Park, including the fair market value of the land, equipment, landscaping and development; High School facilities (e.g., portable classrooms); High School fees (estimated to be in the amount of $210,651); and any other facility with a useful life of 5 years or more and that will be owned, operated or maintained by the Azusa Unified School District. II. Metropolitan Transportation Authority Facilities: Palm Drive freight rail undercrossing;' Citrus Avenue freight rail undercrossing; realignment of the freight rail tracks (including, but not limited to, the cost of the rail, rail hardware, ties, ballast, subballast, embankment fill, drainage leading up to and extending beyond the Palm Drive freight rail undercrossing and the Citrus Avenue freight rail undercrossing); real property costs (at fair market value) for land required to be purchased, conveyed, dedicated or otherwise transferred to the Metropolitan Transportation Authority for any of the foregoing purposes. (') The costs associated with the Public Facilities, including: costs incurred by the Developer in preparing the Plans (as defined in Exhibit E) and the related costs of environmental evaluations; fees paid to governmental agencies for obtaining permits, licenses or other governmental approvals for the Public Facilities; a construction and project management fee of five percent (5%) for the construction of the Public Facilities; professional costs incurred by the Developer such as engineering, legal, accounting, inspection, construction staking, materials testing and similar professional services; costs directly related to the construction and/or acquisition of Public Facilities, such as costs of payment, performance and/or maintenance bonds, and insurance costs; and Developer accounting costs associated with the preparation and substantiation of requests for payment under this Agreement. RVPU13\MUM\682865.1 A-1 III. Los Angeles County Sanitation District Facilities: County Sanitation District No. 22 Sanitation Facilities in satisfaction of Connection Fees. IV. City of Glendora Facilities: Citrus Avenue street, bridge, and traffic signal improvements; Sierra Madre water improvements; real property or right of way costs (at fair market value) for land required to be purchased, conveyed, dedicated or otherwise transferred to the City of Glendora for any of the foregoing purposes. Any other facility with a useful life of 5 years or more and that will be owned, operated or maintained by the City of Glendora. RVPUB\MUM\682865.1 A-2 EXHIBIT B DISCRETE COMPONENTS [TO BE PRESENTED BY SUBSEQUENT AMENDMENT TO EXHIBIT PURSUANT TO SECTION 6(C) OF THE FUNDING AND ACQUISITION AGREEMENT] RVPUB\MUM\682865.1 B-1 EXHIBIT C FORM OF PAYMENT REQUEST City of Azusa Community Facilities District No. 2005-1 (Rosedale) The undersigned, , a duly authorized representative of the Developer, hereby requests payment of the Purchase Price of the City Facilities described in Attachment A attached hereto. Capitalized undefined terms shall have the meanings ascribed thereto in the Acquisition Agreement, dated as of August 1, 2005 (the "Acquisition Agreement"), by and between (i) the City of Azusa for the City of Azusa Community Facilities District No. 2005-1 (Rosedale) (the "CFD"), and (ii) Azusa Land Partners, LLC, a Delaware limited liability company (the "Developer"). In connection with this Payment Request, the undersigned hereby represents and warrants to the CFD and the City as follows: (1) He (she) is a duly authorized representative of the Developer, qualified to execute this request for payment on behalf of the Developer and knowledgeable as to the matters set forth herein. (2) Each of the City Facilities described in Attachment A has been completed in accordance with the Acquisition Agreement. (3) The true and correct Actual Cost of the City Facilities for which payment is requested is set forth in Attachment A. (4) Attached hereto are invoices, receipts, worksheets and other evidence of costs which are in sufficient detail to allow the City to verify the Actual Cost of the City Facilities for which payment is requested. (5) There has not been filed with or served upon the Developer notice of any lien, right to lien or attachment upon, or claim affecting the right to receive the payment requested herein which has not been released or will not be released simultaneously with the payment of such obligation, other than materialmen's or mechanics' liens accruing by operation of law. Copies of lien releases for all work for which payment is requested hereunder are attached hereto. (6) The Developer is in compliance with the terms and provisions of the Acquisition Agreement. The Purchase Price for the City Facilities described in Exhibit B shall be payable as follows: S Agreement. out of the Improvement Fund created pursuant to the Fiscal Agent RVPUB\MUM\682865.1 C-1 out of the Surplus Taxes Fund pursuant to the Fiscal Agent Agreement. RVPUB\MUM\682865.1 C-2 Dated: I hereby certify that the above representations and warranties are true and correct. AZUSA LAND PARTNERS, LLC a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its: Administrative Member By: Chris Gibbs, President By execution of this Payment Request, the City does hereby approve of the payment as described in this Payment Request and directs the Fiscal Agent to pay such amounts, first, from the Improvement Fund and, second from the Surplus Taxes Fund as applicable, to the payee listed above. CITY OF AZUSA for the City of Azusa Community Facilities District No. 2005-1 (Rosedale) LOW City Manager RVPU13\MUM\682865.1 C-3 EXHIBIT D FORM OF JCFA FACILITIES PAYMENT REQUEST City of Azusa Community Facilities District No. 2005-1 (Rosedale) (1) City of Azusa Community Facilities District No. 2005-1 (Rosedale) ("CFD") is hereby requested to pay from the CFD bond proceeds to the payee listed below, as Payee, the sum set forth in (3) below: Payee: (2) The undersigned certifies that the amount requested is for the payment of, or reimbursement for, Public Facilities financed through a Joint Community Facilities Agreement, and that such amount has not formed the basis of prior request or payment, and is being made with respect to Public Facilities to be owned or operated by [name of JCFA participant]. (3) Amount requested: $ Description of Facilities: (4) Capitalized terms not defined herein shall have the meaning set forth in the Acquisition Agreement, dated as of August 1, 2005 (the "Acquisition Agreement"), by and between (i) the City of Azusa for the City of Azusa Community Facilities District No. 2005-1 (Rosedale) (the "CFD"), and (ii) Azusa Land Partners, LLC, a Delaware limited liability company (the "developer"). Dated: AZUSA LAND PARTNERS, LLC a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its: Administrative Member By; Chris Gibbs, President By execution of this JCFA Facilities Payment Request, the City does hereby approve of the payment as described in this JCFA Facilities Payment Request and directs the Fiscal Agent to pay such amounts, first, from the Improvement Fund and, second from the Surplus Taxes Fund as applicable, to the payee listed above. RVPUB\MUM\682865.1 CITY OF AZUSA for the City of Azusa Community Facilities District No. 2005-1 (Rosedale) By: City Manager D-1 EXHIBIT E DEFINITIONS The following terms shall have the meanings ascribed to them for purposes of this Agreement. Unless otherwise indicated, any other terms, capitalized or not, when used herein shall have the meanings ascribed to them in the Fiscal Agent Agreement (as hereinafter defined). "Acceptable Title" means title to land or interest therein, in form acceptable to the Public Works director, free and clear of all liens, taxes, assessments, leases, easements and encumbrances, whether or not recorded, but subject to any exceptions determined by the Public Works Director as not interfering with the actual or intended use of the land or interest therein. Notwithstanding the foregoing, an irrevocable offer of dedication may constitute land with an "Acceptable Title" if. (i) such offer is necessary to satisfy a condition to a tentative or final parcel map, (ii) such offer is in a form acceptable to the Public Works Director, (iii) the Public Works Director has no reason to believe that such offer of dedication will not be accepted by the applicable public agency, and (iv) the Developer 'commits in writing not to allow any liens to be imposed on such property prior to its acceptance. "Acceptance Date" means the date the City Council takes final action to accept dedication of or transfer of title to a Public Facility. "Additional Bonds" means any series of Bonds issued by or on behalf of the District after the first series of Bonds, in each case in compliance with and under supplements to the Fiscal Agent Agreement, which Additional Bonds shall be secured on a parity lien or subordinate lien position with other Bonds previously issued within any Improvement Area. "Agreement" means this Acquisition Agreement, together with any Supplement hereto. "Act" means the Mello -Roos Community Facilities Act of 1982, Sections 53311 et seq. of the California Government Code, as amended. "Actual Cost" means the substantiated cost of a City Facility, which costs may include: (i) the costs incurred by the Developer for the construction of such City Facility, (ii) the costs incurred by the Developer in preparing the Plans for such City Facility and the related costs of environmental evaluations of the City Facility, (iii) the fees paid to governmental agencies for obtaining permits, licenses or other governmental approvals for such City Facility, (iv) a construction and project management fee of five percent (5%) of the costs described in clause (i) above incurred for the construction of such City Facility, (v) professional costs incurred by the Developer or the City associated with such City Facility, such as engineering, legal, accounting, inspection, construction staking, materials testing and similar professional services; and (vi) costs directly related to the construction and/or acquisition of a City Facility, such as costs of payment, performance and/or maintenance bonds, and insurance costs (including costs of any title insurance required hereunder). Actual Cost shall not include any cost of carry or interest expense with respect to any construction loan obtained by the Developer with respect to the City Facilities. RVPUB\MUM\682865.1 E-1 "Affiliate" means any person or entity owning an interest of five percent (5%) or more in the Developer. "Discrete Component" means a component of a City Facility that the City Manager has agreed can be separately identified, inspected and completed, and be the subject of a Payment Request hereunder. The Discrete Components of the City Facilities are shown on Exhibit B hereto. The Discrete Components of City Facilities not shown in Exhibit B to be financed from the proceeds of Additional Bonds shall be determined by the City Manager following consultation with the Developer, and shall be identified in a Supplement executed by the parties hereto prior to the issuance of any such Additional Bonds. "Final Discrete Component" means the last Discrete Component of a City Facility to be financed after all other Discrete Components of that City Facility have been paid for from the proceeds of the Bonds. "Fiscal Agent Agreement" means, collectively, any agreement or agreements by that or similar name to be executed by the City, for and on behalf of any one or more of the Improvement Areas of the District, and the Fiscal Agent, which will provide for, among other matters, the issuance of the Bonds and the establishment of an Improvement Fund as originally executed by the City and the Fiscal Agent and as it may be amended from time to time. "Improvement Fund" means the Improvement Fund established by the Fiscal Agent Agreement for any series of Bonds issued on behalf of the District. "Parity Bonds" means additional series of Bonds issued by the City for the CFD in compliance with and under supplements to the Fiscal Agent Agreement, which Bonds shall be secured on a parity lien position with other Bonds previously issued. "Payment Request" means a document, substantially in the form of Exhibit D attached hereto, to be used by the Developer in requesting payment of a Purchase Price for a City Facility. "Plans" means the plans, specifications, schedules and related construction contracts for the City Facilities approved pursuant to the applicable standards of the City when completed and acquired. As of the date of this Acquisition Agreement, the City standards for construction incorporate those set forth in the Green Book, Standard Specifications for Public Works Construction (SSPWC), of the Southern California Chapter of the American Public Works Association. "Purchase Price" means the amount paid by the City for a City Facility determined in accordance with Section 7 hereof, being an amount equal to the Actual Cost of such City Facility, but subject to the limitations and reductions provided for in Section 7. "Supplement" means a written document amending, supplementing or otherwise modifying the Acquisition Agreement and any exhibit thereto, including any amendments to the list of Discrete Components in Exhibit B, and/or the addition to Exhibit B of additional Public Facilities (and Discrete Components) to be financed with proceeds of any Additional Bonds. RVPUB\MUM\682865.1 E-2 EXHIBIT F CITY OF AZUSA NOTICE OF SPECIAL TAX Community Facilities District No. 2005-1 (Rosedale) 1. WHAT IS COMMUNITY FACILITIES DISTRICT (CFD) NO. 2005-1 ? CFD No. 2005-1 (Rosedale) was formed pursuant to the "Mello -Roos Community Facilities Act of 1982" to finance certain public facilities and services. 2. WHO IS RESPONSIBLE TO PAY THE SPECIAL TAX AND HOW IS IT BILLED? The property owner is responsible for paying the CFD No. 2005-1 (Rosedale) special tax, which will appear as a separate line item on your property tax bill along with your regular property taxes. 3. HOW MUCH WILL MY SPECIAL TAX BE? The special tax is based upon the size of the home. The assigned and maximum special taxes for CFD No. 2005-1 (Rosedale) for the 2005-06 Fiscal Year are summarized below. For. Public Facilities (Special Tax A): RVPUB\MUM\682865.1 F-1 Assigned Maximum. Classification Home Size Special Tax Special Tax 1 Residential Property $ /dwelling unit $ /dwelling unit Greater than sq. ft. 2 Residential Property $ /dwelling unit $ /dwelling unit . sq. ft. — sq. ft. 3 Residential Property $ /dwelling unit $ /dwelling unit sq. ft. — sq. ft. 4 Residential Property $ /dwelling unit $ /dwelling unit Less than or equal to sq. ft. RVPUB\MUM\682865.1 F-1 For Public Maintenance (Special Tax B): Special Tax A is subject to a 2% annual escalator. Special Tax B is subject to an annual escalator of 4. HOW LONG WILL I HAVE TO PAY THE CFD NO. 2005-1 SPECIAL TAX? The CFD No. 2005-1 collected for public facilities special tax will not be collected after calendar year 20 . The CFD No. 2005-1 special tax collected for public services will be collected in perpetuity or until the City Council determined that such tax is no longer needed. 5. CAN THE SPECIAL TAXES BE PREPAID? Homeowners have the option of prepaying their CFD No. 2005-1 (Rosedale) Special Tax anytime. Special Tax B cannot be prepaid. For prepayment information please contact the City of Azusa's CFD No. 2005-1 (Rosedale) administrator, David Taussig & Associates, Inc. at (800) 969-4382. 6. WHERE CAN I GET MORE INFORMATION? For more information in regards to CFD No. 2005-1, contact the City of Azusa's CFD No. 2005-1 (Rosedale) administrator, David Taussig & Associates, Inc. at (800) 969-4382. RVPUB\MUM\682865.1 F-2 Assigned Maximum Classification Home Size Special Tax Special Tax 1 Residential Property $ /dwelling unit $ /dwelling unit Greater than sq. ft. 2 Residential Property $ /dwelling unit $ /dwelling unit sq. ft. — sq. ft. 3 Residential Property $ /dwelling unit $ /dwelling unit sq. ft. — sq. ft. 4 Residential Property $ /dwelling unit $ /dwelling unit Less than or equal to sq. ft. Special Tax A is subject to a 2% annual escalator. Special Tax B is subject to an annual escalator of 4. HOW LONG WILL I HAVE TO PAY THE CFD NO. 2005-1 SPECIAL TAX? The CFD No. 2005-1 collected for public facilities special tax will not be collected after calendar year 20 . The CFD No. 2005-1 special tax collected for public services will be collected in perpetuity or until the City Council determined that such tax is no longer needed. 5. CAN THE SPECIAL TAXES BE PREPAID? Homeowners have the option of prepaying their CFD No. 2005-1 (Rosedale) Special Tax anytime. Special Tax B cannot be prepaid. For prepayment information please contact the City of Azusa's CFD No. 2005-1 (Rosedale) administrator, David Taussig & Associates, Inc. at (800) 969-4382. 6. WHERE CAN I GET MORE INFORMATION? For more information in regards to CFD No. 2005-1, contact the City of Azusa's CFD No. 2005-1 (Rosedale) administrator, David Taussig & Associates, Inc. at (800) 969-4382. RVPUB\MUM\682865.1 F-2 CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: TITO HAYES, DIRECTOR OF PUBLIC WORKS VIA: F.M. DELACH, CITY MANAGERr(OF/ DATE: JULY 18, 2011 SUBJECT: FINAL TRACT MAP NO. 54057-13 RECOMMENDED ACTION It is recommended that the City Council acts and finds as follows: 1. That this project complies with the General Plan and is consistent with the approved tentative map and any amendments thereto. 2. The dedications as offered on the maps are hereby approved and accepted. 3. The City Council approves and authorizes the Mayor to execute the attached AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS FOR Tract No. 54057-13 to construct the required public improvements and also accept the attached Faithful Performance Bond in the amount of $118,152.21, the attached Labor and Materials Bond for $118,152.21, as guaranteed by General Insurance Company of America, and a cash Monumentation Bond in the amount of $11,750. 4. That pursuant to Section 66436(a)(3)(A)(i-vii) of the Subdivision Map Act, the City Council hereby finds that the development of the property, in the manner set forth on the subject division of land, will not unreasonably interfere with the free and complete exercise of the easements held by Azusa Land and Water Company, Starfield Azusa Heritage Oaks, LLC, Southern California Edison Company, Monrovia Nursery Company and Rosedale Land Partners II, LLC and accepts the map without the signatures of said easement holders. 5. Approve Final Tract Map No. 54057-13. 6. The City Clerk is hereby authorized to endorse on the face of the maps the certificates, which embodies the approval of said maps and acceptance of dedications. BACKGROUND This Final Map involves the approval of the final subdivision map designated 54057-13, located on the westerly side of the project area, just west of the future Alisal Park. This subdivision will complement the west portion of the neighborhood started by Fieldstone Homes, known as Heritage Oaks, which is now under construction by Lee Homes (Cityview). The developer is Brookfield Rosedale 66, LLC., a Delaware; Limited Liability Company, and the Civil Engineer is Walden & Associates.' j )76J Approval of Final Tract Map No. 54057-13, Rosedale(A ' I�} City Council Meeting of July 18 2011 iA The designated City Engineer has completed final checking procedures for the final map and has found that it is in substantial conformance with the State Subdivision Map Act, City of Azusa requirements, Vesting Tentative Map 54057, Tentative Map 62150, and related conditions of approval. The Applicant has submitted the checked Final Map, the subdivision agreement, posted necessary bonds, and paid the applicable fees. Attached are the agreement for COMPLETION OF PUBLIC IMPROVEMENTS for Tracts No. 54057-13 to construct the required public improvements, as well as a Faithful Performance Bond in the amount of $118,152.21, and Labor and Materials Bond in the amounts of $118,152.21 as guaranteed by General Insurance Company of America. A cash Monument Bond in the amount of $11,750 has also been posted. The street improvements have been mostly constructed, with finishing details to be completed in the near future. These will be offered to the City for acceptance as they are completed in their entirety. With the technical review having been completed, and the map meeting State and City requirements, the Council's approval would be a ministerial action. FISCAL IMPACT The fiscal impact of the Rosedale project was analyzed in a Fiscal Impact Study approved as part of the original Rosedale entitlements in 2003. Approval of Final Tract Map No. 54057-13, Rosedale 2 City Council Meeting of July 18, 2011 The Canyon City—Gateway to the American Dream July 19, 2010 Los Angeles County Recorder Attn: Property Recording Division 12400 E. Imperial Hwy Norwalk, CA 90650 Gentlepersons: Please record the following document for the City of Azusa: Agreement for Completion of Public Improvements Tract No. 54057-13, between City of Azusa, a California Municipal Corporation, and Brookfield Rosedale 66, LLC , a Delaware limited liability company. Please note that The City of Azusa is exempt from fees per Government Code Section 6103. Thank you for your continued cooperation. Sincerel Vera Mendoza City Clerk VM/jh - Office of the City Clerk 213 E. Foothill Boulevard, Azusa, California, 91702 (626)812-5229 ♦ Fax (626)812-5155 ♦ vmendoza@ci.azusa.ca.us -C' Los Angeles County Recorder Attn: Property Recording Division 12400 E. Imperial Hwy Norwalk, CA 90650 Gentlepersons: Please record the following document for the City of Azusa: Agreement for Completion of Public Improvements Tract No. 54057-13, between City of Azusa, a California Municipal Corporation, and Brookfield Rosedale 66, LLC , a Delaware limited liability company. Please note that The City of Azusa is exempt from fees per Government Code Section 6103. Thank you for your continued cooperation. Sincerel Vera Mendoza City Clerk VM/jh - Office of the City Clerk 213 E. Foothill Boulevard, Azusa, California, 91702 (626)812-5229 ♦ Fax (626)812-5155 ♦ vmendoza@ci.azusa.ca.us Brookfield Homes 3090 Bristol Street, Suite 200 Costa Mesa, CA 92626 l o: From: Derek Barbour Project Mana er Fax: Fax: (714) 200-1845 Phone: Phone: (714) 200-1674 Email: Derek.Barbour@BrookfieldHomes.com Datte Sub} ect: irir� — - onion Comments: Brookfield Homes 3090 Bristol Street, Ste. 200, CA 92626 (714) 427-6868 This page is part of your document - DO NOT DISCARD - ���� 20119989774 �� **psi 11 II II II ll llgg f �} II��IIIIIII�llllll� IIlII�IIIIII� I�IIII�IIIII�III�III�I�III�I P0038: + Recorded/Filed in Official Records Recorder's Office, Los Angeles County, California 07/25/11 AT 02:11 PM FEES: 0.00 TAXES: 0.00 OTHER: 0.00 PAID: 0.00 I�IVI�IIIIIII��IIIIIIII�IIIIVII�IIIINI�VIII911111111VIII�III��NIIIIIIIIIIIVII LEADSHEET 201107250030079 00004434993 ��ru�wMin�iuma 003411567 SEQ: 01 DAR miuuw�Counter (Hard Copy) u�Hoi A ioimmm�mim�mNn�iiiao�ummuiom � THIS FORM IS NOT .oaEDUPLICATED w�E�REroaEOM:°.a I *201109������� NAME Vera Mendoza City Clerk City of Azusa ADDRESS 213 E. Foothill Blvd. CITY, STATE Azusa, CA ZIP CODE 91702 SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE TITLES) Agreement for Completion of Public Improvements Tract No. 54057-13, between City of Azusa, a California Municipal Corporation, and Brookfield Rosedale 66, LLC , a Delaware limited liability company. RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: CITY OF AZUSA 213 E Foothill Blvd. Azusa, CA 91702 ATTN: City Clerk SPACE ABOVE THIS LINE FOR RECORDER'S USE Egypt from recording fw._per Gowmment Code Section 6103 CITY OF AT., A, CALIFORNIA Xe� F 13y: City Clerk AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS TRACT NO. 54057-13 between CITY OF AZUSA a California municipal corporation and BROOKFIELD ROSEDALE 66, LLC a Delaware limited liability company ORANGE\MMARTINEZ\33457. 11 AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS TRACT MAP NO. 54057-13 I. PARTIES AND DATE. This Agreement for the Completion of Public Improvements ("Agreement") is entered into as of this day of , 2011 by and between the City of Azusa, a California municipal corporation ("City") and BROOKFIELD ROSEDALE 66, LLC with it's principal office located at 3090 Bristol Street, Suite 200, Costa Mesa, CA 92626 ("Developer"). City and Developer are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties." II. RECITALS. A. Developer has heretofore submitted to City an application for approval of a tract map for real property located within City, a legal description of which is attached hereto as Exhibit "A" ("Property"), and which is identified in City records Tract Map No. 54057-13. B. Developer has not completed all of the work or made all of the public improvements required by Chapter 66, Article V of the Azusa Municipal Code, the Subdivision Map Act (Government Code sections 66410 et seq.), the conditions of approval for Tract No. 54057-13 or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land. C. Pursuant to Section 66-4650) and the applicable provisions of the Map Act, Developer and City enter into this Agreement for the timely construction and completion of the public improvements and the furnishing of the security therefor, acceptable to the City Engineer and City Attorney, for Tract No. 54057-13. D. Developer's execution of this Agreement and the provision of the security are made in consideration of City's approval of the final map for Tract No. 54057-13. III. TERMS. 1.0 Effectiveness. This Agreement shall not be effective unless and until all three of the following conditions are satisfied: (a) Developer provides City with security of the type and in the amounts required by this Agreement; (b) Developer executes and records this Agreement in the Recorder's Office of the County of Los Angeles; (c) the City Council of the City ("City Council") approves the final map for Tract No. 54057-13 and (d) Developer records the final map for Tract No. 54057-13 in the Recorder's Office of the County of Los Angeles. If the above described conditions are not satisfied, this Agreement shall automatically terminate without need. of further action by either City or Developer, and Developer may not thereafter record the final map for Tract No. 54057-13. 2.0 Public Improvements. Developer shall construct or have constructed at its own cost, expense, and liability all improvements required by City as part of the approval of Tract ORAN GMMMARTINEZ\33457. 12 No. 54057-13, including, but not limited to, all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities as shown in detail on the plans, profiles, and specifications which have been prepared by or on behalf of Developer for Tract Map No. 54057-13 ("Public Improvements"). The Public Improvements are more specifically described in Exhibit "B," which is attached hereto and incorporated herein by this reference. Construction of the Public Improvements shall include any transitions and/or other incidental work deemed necessary for drainage or public safety. The Developer shall be responsible for the replacement, relocation, or removal of any component of any irrigation water system in conflict with the construction or installation of the Public Improvements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water system. Developer further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public Improvements. 2.1 Prior Partial Construction of Public Improvements. Where construction of any Public Improvements has been partially completed prior to this Agreement, Developer agrees to complete such Public Improvements or assure their completion in accordance with this Agreement. 2.2 Permits, Notices. Utility Statements. Prior to commencing any work, Developer shall, at its sole cost, expense, and liability, obtain all necessary pen -nits and licenses and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Developer's obligations under this Agreement. Developer shall conduct the work in full compliance with the regulations, rules, and other requirements contained in any permit or license issued to Developer. Prior to cornrnencing any work, Developer shall file a written statement with the City Clerk and the City Engineer, signed by Developer and each utility which will provide utility service to the Property, attesting that Developer has made all deposits legally required by the utility for the extension and provision of utility service to the Property. 2.3 Pre -approval of Plans and Specifications. Developer is prohibited from commencing work on any Public Improvement until all plans and specifications for such Public Improvement have been submitted to and approved by the City Engineer, or his or her designee. Approval by the City Engineer shall not relieve Developer from ensuring that all Public Improvements conform with all other requirements and standards set forth in this Agreement. 2.4 Quality of Work; Compliance With Laws and Codes. The construction plans and specifications for the Public Improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public Improvements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced. ORAN GE\MMARTIN EZ\33457. 0 2.5 Standard of Performance. Developer and its contractors, if any, shall perform all work required to construct the Public Improvements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Developer warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement. 2.6 Alterations to Imp ovements. The Public Improvements in Exhibit `B" are understood to be only a general designation of the work and improvements to be done, and not a binding description thereof. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. If during the course of construction and installation of the Public Improvements it is determined that the public interest requires alterations in the Public Improvements, Developer shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public Improvements to be completed may be accomplished without giving prior notice thereof to Developer's surety for this Agreement. 3.0 Maintenance of Public Improvements and Landscaping. City shall not be responsible or liable for the maintenance or care of the Public Improvements until City approves and accepts them. City shall exercise no control over the Public Improvements until accepted. Any use by any person of the Public Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's acceptance of the Public Improvements. Developer shall maintain all the Public Improvements in a state of good repair until they are completed by Developer and approved and accepted by City, and until the security for the performance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Developer and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public Improvements or their condition prior to acceptance. 4.0 Construction Schedule. Unless extended pursuant to this Section 4.1 of this Agreement, Developer shall fully and adequately complete or have completed the Public Improvements within twelve (12) months following approval of this agreement for Tract No. 54057-13. ORANGEWMARUNEZU 3457. 14 4.1 Extensions. City may, in its sole and absolute discretion, provide Developer with additional time within which to complete the Public Improvements. It is understood that by providing the security required under Section 13.0 et seq. of this Agreement, Developer and its surety consent in advance to any extension of time as may be given by City to Developer, and waives any and all right to notice of such extension(s). Developer's acceptance of an extension of time granted by City shall constitute a waiver by Developer and its surety of all defense of laches, estoppel, statutes of limitations, and other limitations of action in any action or proceeding filed by City following the date on which the Public Improvements were to have been completed hereunder. In addition, as consideration for granting such extension to Developer, City reserves the right to review the provisions of this Agreement, including, but not limited to, the construction standards, the cost estimates established by City, and the sufficiency of the improvement security provided by Developer, and to require adjustments thereto when warranted according to City's reasonable discretion. 4.2 Accrual of Limitations Period. Any limitations period provided by law related to breach of this Agreement or the terns thereof shall not accrue until Developer has provided the City Engineer with written notice of Developer's intent to abandon or otherwise not complete required or agreed upon Public Improvements. 5.0 Gradin. Developer agrees that any and all grading done or to be done in conjunction with construction of the Public Improvements or development of Tract No. 54057- . 13 shall conform to all federal, state, and local laws, ordinances, regulations, and other requirements, including City's grading regulations. In order to prevent damage to the Public Improvements by improper drainage or other hazards, the grading shall be completed in accordance with the time schedule for completion of the Public Improvements established by this Agreement, and prior to City's approval and acceptance of the Public Improvements and release of the Security as set forth in Section 13.0 et seq. of this Agreement. 6.0 Utilities. Developer shall provide utility services, including water, power, gas, and telephone service to serve each parcel, lot, or unit of land within Tract No. 54057-13 in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the regulations, schedules and fees of the utilities or agencies providing such services. Except for commercial or industrial properties, Developer shall also provide cable television facilities to serve each parcel, lot, or unit of land in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the requirements of the cable company possessing a valid franchise with City to provide such service within City's jurisdictional limits. All utilities shall be installed underground. 7.0 Fees and Charges. Developer shall, at its sole cost, expense, and liability, pay all fees, charges, and taxes arising out of construction of the Public Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees, and any impact or connection fees established by City ordinance, resolution, regulation, or policy, or as established by City relative to Tract No. 54057-13. 8.0 City -Inspection of Public Improvements. Developer shall, at its sole cost, expense, and liability, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public ORANGEUMMARTMEZ\33457. ] 5 Improvements and areas where construction of the Public Improvements is occurring or will occur. 9.0 Default: Notice: Remedies. 9.1 Notice. If Developer neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may at any time thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation ("Notice"). Developer shall substantially commence the work required to remedy the default or violation within ten (10) days of the Notice. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice verbally, and Developer shall substantially commence the required work within twenty-four (24) hours thereof. Immediately upon City's issuance of the Notice, Developer and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs expenses as provided for in Section 10.0 of this Agreement. 9.2 Failure to Remedy. City Action. If the work required to remedy the noticed default or violation is not diligently prosecuted to a completion acceptable to City within the time frame contained in the Notice, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Developer and its surety, without the necessity of giving any further notice to Developer or surety. City's right to take such actions shall in no way be limited by the fact that Developer or its surety may have constructed any, or none of the required or agreed upon Public Improvements at the time of City's demand for performance. In the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Developer or its surety to cease in order to allow adequate coordination by City. Notwithstanding the foregoing, if conditions precedent for reversion to acreage can be met and if the interests of City will not be prejudiced thereby, City may also process a reversion to acreage and thereafter recover from Developer or its surety the full cost and expense incurred. 9.3 Other Remedies. No action by City pursuant to Section 9.0 et seq. of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance. 10.0 Administrative Costs. If Developer fails to construct and install all or any part of the Public Improvements within the time required by this Agreement, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney's fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law. ORANGE\MMARTINEZ\33457. 16 11.0 Acceptance of Improvements, As -Built or Record Drawin s. If the Public Improvements are properly completed by Developer and approved by the City Engineer, and if they comply with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements, the City Council shall be authorized to accept the Public Improvements. The City Council may, in its sole and absolute discretion, accept fully completed portions of the Public Improvements prior to such time as all of the Public Improvements are complete, which shall not release or modify Developer's obligation to complete the remainder of the Public Improvements within the time required by this Agreement. Upon the total or partial acceptance of the Public Improvements by City, Developer shall file with the Recorder's Office of the County of Los Angeles a notice of completion for the accepted Public Improvements in accordance with California Civil Code section 3093, at which time the accepted Public Improvements shall become the sole and exclusive property of City without payment therefor. If Tract No. 54057-13 was approved and recorded as a single phase map, City shall not accept any one or more of the improvements until all of the Public Improvements are completed by Developer and approved by City. Issuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City's acceptance or approval of any Public Improvements. Notwithstanding the foregoing, City may not accept any Public Improvements unless and until Developer provides one (1) set of "as -built" or record drawings or plans to the City Engineer for all such Public Improvements. The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein. 12.0 Warranty and Guarantee. Developer hereby warrants and guarantees all Public Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of all landscaping within the Property in a vigorous and thriving condition reasonably acceptable to City, for a period of one (1) year following completion of the work and acceptance by City ("Warranty"). During the Warranty, Developer shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion of the Public Improvements, in accordance with the current ordinances, resolutions, regulations, codes, standards, or other requirements of City, and to the approval of the City Engineer. All repairs, replacements,. or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Developer and its surety. As to any Public Improvements which have been repaired, replaced, or reconstructed during the Warranty, Developer and its surety hereby agree to extend the Warranty for an additional one (1) year period following City's acceptance of the repaired, replaced, or reconstructed Public Improvements. Nothing herein shall relieve Developer from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Public Improvement following expiration of the Warranty or any extension thereof. Developer's warranty obligation under this section shall survive the expiration or termination of this Agreement. 13.0 Security; Surety Bonds. Prior to execution of this Agreement, Developer shall provide City with surety bonds in the amounts and under the terms set forth below ("Security"). ORANGE\MXM\21759. 17 The amount of the Security shall be based on the City Engineer's approximation of the actual cost to construct the Public Improvements, including the replacement cost for all landscaping ("Estimated Costs"). If City determines, in its sole and absolute discretion, that the Estimated Costs have changed, Developer shall adjust the Security in the amount requested by City. Developer's compliance with this provision (Section 13.0 et seq.) shall in no way limit or modify Developer's indemnification obligation provided in Section 16.0 of this Agreement. 13.1 Perforniance Bond. To guarantee the faithful performance of the Public Improvements and all the provisions of this Agreement, to protect City if Developer is in default as set forth in Section 8.0 et se . of this Agreement, and to secure Developer's one-year guarantee and warranty of the Public Improvements, including the maintenance of all landscaping in a vigorous and thriving condition, Developer shall provide City a faithful performance bond in the amount of ONE HUNDRED EIGHTEEN THOUSAND ONE HUNDRED FIFTY-TWO DOLLARS AND TWENTY ONE CENTS ($118,152.21), which sum shall be not less than one hundred percent (100%) of the Estimated Costs. The City Council may, in its sole and absolute discretion and upon recommendation of the City Engineer, partially release a portion or portions of the security provided under this section as the Public Improvements are accepted by City, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 54057-13, and the total remaining security is not less than twenty-five percent (25%) of the Estimated Costs. All security provided under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 12 of this Agreement, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 54057-13. 13.2 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for performance of the Public Improvements and this Agreement, Developer shall provide City a labor and materials bond in the amount of ONE HUNDRED EIGHTEEN THOUSAND ONE HUNDRED FIFTY-TWO DOLLARS AND TWENTY ONE CENTS ($118,152.21), which sum shall not be less than one hundred percent (100%) of the Estimated Costs. The security provided under this section may be released by written authorization of the City Engineer after six (6) months from the date City accepts the final Public Improvements. The amount of such security shall be reduced by the total of all stop notice or mechanic's lien claims of which City is aware, plus an amount equal to twenty percent (20%) of such claims for reimbursement of City's anticipated administrative and legal expenses arising out of such claims. 13.3 Additional Requirements. The surety for any surety bonds provided as Security shall have a current A.M. Best's rating of no less than A:VIII, shall be licensed to do business in California, and shall be satisfactory to City. As part of the obligation secured by the Security and in addition to the face amount of the Security, the Developer or its surety shall secure the costs and reasonable expenses and fees, including reasonable attorney's fees and costs, incurred by City in enforcing the obligations of this Agreement. The Developer and its surety stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public hnprovements, or the plans and specifications for the Public Improvements shall in any way affect its obligation on the Security. ORANGE\MMARTINEZ\3345 7. 18 13.4 Evidence and Incorporation of Security. Evidence of the Security shall be provided on the forms set forth in Exhibit "C," unless other forms are deemed acceptable by the City Engineer and the City Attorney, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Exhibit "C" and incorporated herein by this reference. 14.0 Monuunent Security. Prior to City's execution of this Agreement, to guarantee payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and street centerline monuments for Tract No. 54057-13 in compliance with the applicable provisions of City's Municipal and/or Development Code ("Subdivision Monuments"), Developer shall deposit cash with City in the amount of ELEVEN THOUSAND SEVEN HUNDRED FIFTY DOLLARS ($11,750.00), which sum shall not be less than one hundred percent (100%) of the costs of setting the Subdivision Monuments as determined by the City Engineer. Said cash deposit may be released by written authorization of the City Engineer after all required Subdivision Monuments are accepted by the City Engineer, City has received written acknowledgment of payment in full from the engineer or surveyor who set the Subdivision Monuments, and provided Developer is not in default of any provision of this Agreement or condition of approval for Tract No. 54057-13. 15.0 Lien. To secure the timely perfonnance of Developer's obligations under this Agreement, including those obligations for which security has been provided pursuant to Sections 13 et seq. and 14 of this Agreement, Developer hereby creates in favor of City a lien against all portions of the Property not dedicated to City or some other govermnental agency for a public purpose. As to Developer's default on those obligations for which security has been provided pursuant to Sections 13 et se . and 14 of this Agreement, City shall first attempt to collect against such security prior to exercising its rights as a contract lienholder under this section. 16.0 Indemnification. Developer shall defend, indemnify, and hold hannless City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Developer, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the Public Improvements, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the negligence or willful misconduct of Agency as determined by a court or administrative body of competent jurisdiction. Developer's obligation to indemnify shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents. 17.0 Insurance. ORANGE\MMARTINEZ\33457. 19 17.1 Types; Amounts. Developer shall procure and maintain, and shall require its contractors to procure and maintain, during construction .of any Public Improvement pursuant to this Agreement, insurance of the types and in the amounts described below ("Required Insurance"). If any of the Required Insurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit. 17.1.1 General Liability. Developer and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage. 17.1.2 Business Automobile Liability. Developer and its contractors shall procure and maintain business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible. 17.1.3 Workers' Compensation. Developer and its contractors shall procure and maintain workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than $1,000,000 per occurrence, at all times during which insured retains employees. 17.1.4 Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability. 17.2 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses. 17.3 Additional Insured; Separation of Insureds. The Required Insurance shall name City, its elected officials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of Developer or its contractors, including materials, parts, or equipment furnished in connection therewith. The Required Insurance shall contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers. 17.4 Primary Insurance; Waiver of Subrojgation. The Required Insurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, agents, and volunteers. All policies for the Required Insurance ORANGE\MMARTINEZ\33457. r 10 shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy. 17.5 _Certificates; Verification. Developer and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 17.6 Term, Cancellation Notice. Developer and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall be endorsed to provide that the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on 30 days prior written notice to City. 17.7 Insurer Rating. Unless approved in writing by City, all Required Insurance shall placed with insurers licensed to do business in the State of Califon -iia and with a current A.M. Best rating of at least A:VIII. 18.0 Signs and Advertising. Developer understands and agrees to City's ordinances, regulations, and requirements governing signs and advertising structures. Developer hereby agrees with and consents to the removal by City of all signs or other advertising structures erected, placed, or situated in violation of any City ordinance, regulation, or other requirement. Removal shall be at the expense of Developer and its surety. Developer and its surety shall indemnify and hold City free and harmless from any claim or demand arising out of or incident to signs, advertising structures, or their removal. 19.0 Relationship Between the Parties. The Parties hereby mutually agree that neither this Agreement, any map related to Tract No. 54057-13, nor any other related entitlement, permit, or approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Developer. Developer's contractors and subcontractors are exclusively and solely under the control and dominion of Developer. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City. 20.0 General Provisions. 20.1 Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority snake this Agreement and bind each respective Party. 20.2 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement. 20.3 Construction,_ References ;_CUtions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement ORANGE\M MARTINEZ\3345 7. III shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. All references to Developer include all personnel, employees, agents, and subcontractors of Developer, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 20.4 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice: CITY: City of Azusa P.O.Box 1395 213 E. Foothill Blvd. Azusa, Ca.91702 Attn: City Manager DEVELOPER: BROOKFIELD ROSEDALE 66, LLC 3090 Bristol St, Suite 200 Costa Mesa, CA 92626 Attn: Brian Geis Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent; by messenger, as of the date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S. Mail. 20.5 Amendment;_ Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 20.6 Waiver. City's failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City's waiver of any breach of this Agreement, shall not relieve Developer of any of its obligations under this Agreement, whether of the same or similar type. The foregoing shall be true whether City's actions are intentional or unintentional. Developer agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authorization, execution or performance of the Public Improvements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authorization, execution or performance of the Public Improvements or this Agreement. 20.7 Assignment or Transfer of Agreement. Developer shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assign vent, hypothecation, or transfer. Unless specifically stated to the contrary in City's written consent, any assignment, hypothecation, or transfer shall not release or discharge Developer from any duty or responsibility under this Agreement. 20.8 Bindin Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal ORAN GEWMARTMEZ\33457. 112 representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation. 20.9 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 20.10 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 20.11 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Los Angeles, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394. 20.12 Attorneys' Fees and Costs. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all costs and expenses incurred by the prevailing party, including actual attorneys' fees ("Costs"). Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of Costs, which shall include, without limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (a) post judgment motions and appeals, (b) contempt proceedings, (c) garnishment, levy, and debtor and third party examination, (d) discovery, and (e) bankruptcy litigation. This section shall survive the termination or expiration of this Agreement. 20.13 Counterparts. This Agreement may be executed in counterpart originals, which taken together, shall constitute one and the same instrument. ORANGE\MMARTINEZ\33457. 113 CITY OF AZUSA By: A&4(sig (print name FR_�trj e r s LA -C - City Manager City of Azusa BROOI{FIIPLAI#QSEDALE 66, LLC ATTEST: By: By: f 111 _ si nature G , (print name) City Clerk City of Azusa PRESIDENT (print name) (title) (signature) (print name) (title) NOTE: DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S BUSINESS ENTITY. ORAN GE\MMARTINEZ\33 457. 114 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On ❑ before me, choama )� �/_�r/ ] i _ e Here insert Name and Title of the icer 3S personally appeared- Name{s) of Signer{sy f;j.IZJENNA 5. SCHERMAN Commission #� 1889952 a s Notary Public - California T x � Orange County My Comm. Expires May 18. 2014 who proved to me on the basis of satisfactory evidence to be the person(t) whose name$) st� subscribed to the within instrument and acknowiedged to me thatie shef#frey executed the same in aherheir authorized capacity(ies), and that by QVheiAherr signature(b) on the instrument the person($), or the entity upon behalf of which the person(t) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature, - Place Notary Seal Above OPTIONAL signature of iJoigry PublEe -- — - Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: •�1' jojy 'r — Document Date: Signer(s) Other Than Named Above:._ Capacity(les) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual Rome] It! ❑ Partner— ❑ Limited ❑ General I TOO of thumh hero ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing v zuua rvationai Notary Association - NaaonalNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT a a a o b Y a. a a a a a a a v a a g c a o a¢ e a Q y p a. v p u, p"■ a a a p a a N a e a o a a a a a a a M r r s a k a w r A It M r A a r i 0 0 r i 1 State of California /� County of I }ss. On _ 4M H before me, Public, personally appeared F-1? 14/0 C( P Q , Notary I i &lG .0 � w proved to me on the basis a satisfactory _ vidence to a the person whose name t/r. subscribe the within instrument and ack owledged tom ha hel helfhey exe ut the same in is/ r/their authorized capacity(, and that by is/ er/ heir signatures ] on the instrument he person or the entity upon behalf of which t e person) acted, e ecuted the instrument - I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature rar 111lleiillt up seal) ■ a 0 M a N 0 i r 0 K a a a a a v a a a a. c a a o a a a a a v Q a a e a p a a g a a q 'J a 9 P a a a a a a a A I a a a a A a a a a a a M a a 0 a 0 a 0 a 0 1 Date of Document Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known Paper Identification Credible Witness(es) OPTIONAL INFORMATION Thumbprint of Signer ,Mieevy d� r Capacity of Signer: Trustee Power of Attorney CEO/CFO/COO President / Vice -President / Secretary / Treasurer Other: Other Information: ORANGE\MMARTINEZ\33457. 115 ❑ Check here if no thumbprint or fingerprint is available ILLEGIBLE NOTARY SEAL DECLARATION GOVERNMENT CODE 27361.7 I certify under penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary Date Commission Expires C)� Notary Identification Number Ei 5 (For Notaries commissioned after 1-1-1992) Manufacturer/ Vendor Identification Number (For Notaries commissioned after 1-1-1992) Place of Execution of this Declaration Date �- 1` (Firm name if anv) R747 1/92 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY TRACT NO. 54057-13 BEING A PORTION OF LOT 18 OF TRACT NO. 062150, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 1311 PAGES 28 THROUGH 50, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ORANGENMARTINEZ\33457. ] 17 EXHIBIT "B" LIST OF PUBLIC IMPROVEMENTS TRACT NO. 54057-13 ORANGE\M MARTINEZ\33457. 118 Exhibit tBI Tract 54057-13 Rosedale Storm Drains 18" RCP 24" RCP 30' RCP 36' RCP 42" RCP 54" RCP 60" RCP Other RCP Manholes Junction Structures Catch Basins Catch Basins/grates Misc items Sewers 8" VCP 10" VCP House laterals 12" VCP Manholes Misc items Water 8" DIP 12" DIP 16" DIP 12" Valves 8" Valves Thrust Blocks Fire Hydrants Misc items Grand Total est Contingency Bond amount Bond Total Unit $ Units Streets Quantites Price 93,925.00 AC 1380 $ 55.00 Tons Base 2090 $ 40.00 Tons C&G 3757 $ 25.00 LF Street Lights 15 $ 1,500.00 EACH Concrete Pavement $ $ 5.00 SQ FT Curb Ramps 12 $ 1,500.00 each Sidewalk 8641 $ 3.50 sq ft Misc items 2 $ 3,000.00 each total 3 $ 1,000.00 each Storm Drains 18" RCP 24" RCP 30' RCP 36' RCP 42" RCP 54" RCP 60" RCP Other RCP Manholes Junction Structures Catch Basins Catch Basins/grates Misc items Sewers 8" VCP 10" VCP House laterals 12" VCP Manholes Misc items Water 8" DIP 12" DIP 16" DIP 12" Valves 8" Valves Thrust Blocks Fire Hydrants Misc items Grand Total est Contingency Bond amount Bond $ 43.00 Estimate $ 75,900.00 $ 83,600.00 $ 93,925.00 $ 22,500.00 $ 82.00 $ 18,000.00 $ 30,243.50 Reduced Bond Estimate $ 18,975.00 0 0 $ 22,500.00 0 $ 30,243.50 5% $ 16,208.43 $ 324,168.50 $ 340,376.93 $ 71,718.50 1368 $ 57.00 If $ 61.00 If 39 $ 3,000.00 each $ 70.00 If 9 $ 3,000.00 each 1876 $ 43.00 If If $ 60.00 315 $ 58.00 If $ 687 $ 82.00 If $ 11 $ 110.00 If $ each $ 140.00 If $ 129,668.00 $ 156.00 If $ $ $ 250.00 If $ $ $ 300.00 If $ $ 320.00 If $ 2 $ 3,000.00 each $ 3 $ 1,000.00 each $ 5 $ 3,500.00 each $ $ 4,000.00 each $ 10% 1368 $ 57.00 If $ 61.00 If 39 $ 3,000.00 each $ 70.00 If 9 $ 3,000.00 each 1876 $ 43.00 If $ 60.00 If $ 70.00 If $ 3,000.00 each 10 $ 3.000.00 each 11 $ 1,000.00 each 4 $ 2,000.00 each 18,270.00 56,334.00 6,000.00 3,000.00 17,500.00 $ 10,110.40 $ 101,104.00 $ 111,214.40 $ 77.976.00 117, 000.00 27, 000.00 $ 11, 098.80 $ 221,976.00 $ 233,074.80 $ $ 80,668.00 $ 30,000.00 $ 11,000.00 $ 8,000.00 $ 5% $ 6,483.40 $ $ 129,668.00 $ 136,151.40 $ $ 709,603.13 $ $ 70,960.31 $ $ 780,563.44 $ 10,110.40 10,110.40 11,098.80 11,098.80 8,000.00 6,483.40 14,483.40 107,411.10 10,741.11 118,152.21 EXHIBIT "C" SURETY BONDS AND OTHER SECURITY TRACT NO. 54057-13 As evidence of understanding the provisions contained in this Agreement, and of the Developer's intent to comply with same, the Developer has submitted the below described security In the amounts required by this Agreement, and has affixed the appropriate signatures thereto: PERFORMANCE BOND PRINCIPAL AMOUNT: $118.152.21 Surety: General Insurance Company of America Attomey-in-fact: P: Martin Address: c/o Liberty Mutuaa Surety —_ 1QQ1 4th _Avenue_, Suite 1700 Seattle, WA 98154 - MATERIAL AND LABOR BOND PRINCIPAL AMOUNT: -$118,152.21 Surety: General Insurance Company of America Attomey-in-fact: ' P. Martin Address: c/o Liberty Mutual Suretv _..� Avenue, Suite_ 1.700 Seattle, WA 98154 CASH MONUMENT SECURITY: ,S1 1,750.00 Amount deposited per Cash Receipt No. _ _ Date: ORANGEWMARTINEZW457. 119 BOND NO. TM5123576/ INITIAL PREMIUM: 011047487 SUBJECT TO RENEWAL CITY OF AZUSA TRACT MAP NO. 54057-13 IMPROVEMENTS PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS the City of Azusa, California ("City") and BROOKFIELD ROSEDALE 66. LLC ("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 54057-13 ("Public Improvements"); WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Agreement for Completion of Pubic Improvements dated ("Improvement Agreement"); WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and WHEREAS, Principal is required by the Improvement Agreement to provide a good and sufficient bond for performance of the Improvement Agreement, and to guarantee and warranty the Public Improvements constructed thereunder. NOW, THEREFORE, Principal and General Insurance Company of America ("Surety"), a corporation organized and existing under the laws of the State of Washington , and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City in the sum of ONE HUNDRED EIGHTEEN THOUSAND ONE HUNDRED FIFTY-TWO DOLLARS AND TWENTY ONE CENTS ($118,152.21), said sum being not less than one hundred percent (100%) of the total cost of the Public Improvements as set forth in the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perforin the covenants, conditions, agreements, guarantees, and warranties in the Improvement Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save harmless City, its officers, ORANGEWMARTMEZU3457. 120 employees, and agents, as stipulated in the Improvement Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As part of the obligation secured hereby, and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition. This bond is executed and filed to comply with Section 66499 et sec . of the Government Code of California as security for performance of the Improvement Agreement and security for the one-year guarantee and warranty of the Public Improvements. IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney -in -Fact at Toronto, Canada this 30th day of ,lune , 2011. BROOKFIEL R SEDALE 66 LLC Principal By: GENERAL INSURANCE COMPANY OF AMERICA Surety By: (r. P. Main, --A rney-in-Fact �J T title NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS BY PRINCIPAL AND SURETY, AND A COPY OF -ATTORNEY TO LOCAL REPRESENTATIVES OF COMPANY MUST BE ATTACHED TO THIS BOND. ORANGENMARTINED33457. 121 OF EXECUTION THE POWER OF THE BONDING z1b CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of before me ,,:__�a_��T�ubl4 s , t& e Here Insert Namil add Tl. of the [Miter personally appeared JENNA S. SCHERMAN Commission # 1889982 Notary Public - California e Orange County Ally Comm. Expires May 18, 2014 Name(s) or tiigner(s) who proved to me on the basis of satisfactory evidence to be the person(t) whose name(!$) Clare - subscribed to the within instrument and acknowledged to me that &fey executed the same in hisyhelltheir- authorized capacity( -ie&), and that by helb-eir signature() on the instrument the person(t), or the entity upon behalf of which the person() acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal - Signature: Place Notary Seal Above I OPTIONAL I Signature of Notary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: �,� r,�cv�Cx31 S'� 6D—rA— S` es Document Date: Signer(s) Other Than Named Above.. Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: - ----- Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing 0 2009 National Notary Association - NationalNotary.org - 1 -800 -US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT I .. N N . • . . a . a . . . .. a ...... .. N .. .... N N a N . ■ . N ..... N ■ .. . e a N . . . .... T . a . f a N . . . .. N a N . N . State of California County of _ }ss. On before me, Public, personally appeared Notary who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) i. ... N N.. .. a a a .... ... a. ...... N a N ...... a ..... a .. a N a N Y. ... N a a a .. a .... a N ... a. N N a OPTIONAL INFORMATION Date of Document Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known Paper Identification Credible Witness(es) Thumbprint of Signer ORANGE\MMARTINEZl33457. 122 E] Check here if Capacity of Signer: no thumbprint Trustee or fingerprint Power of Attorney is available. CEO/CFO/COO President / Vice -President / Secretary / Treasurer Other: Other Information: ORANGE\MMARTINEZl33457. 122 EXHIBIT "C" SURETY BONDS AND OTHER SECURITY TRACT NO. 54057-13 As evidence of understanding the provisions contained in this Agreement, and of the Developer's intent to comply with same, the Developer has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto: PERFORMANCE BOND PRINCIPAL AMOUNT: 11 & 152.21 Surety: General Insurance Company of America Attorney-in-fact: P: Martin Address: c/o Liberty mutuai Surety, �QQI _4th, Avenue., Suite 1700 Seattle, WA 98154 MATERIAL AND LABOR BOND PRINCIPAL AMOUNT: -$118,152.21 Surety: General Insurance Company of America Attomey-in-fact: P. Martin Address:. c/o Liberty Mutual Surety Avena Suite 1700 _ Seattle WA 98154 CASH MONUMENT SECURITY: $11,75_0.00 Amount deposited per Cash Receipt No. - Date: ORANGEWMARTINEZ03457. l 19 BOND NO TX, 5123576/ INITIAL PREMIUM: _. 0110-47.4B7 SUBJECT TO RENEWAL CITY OF AZUSA TRACT MAP IMPROVEMENTS LABOR AND MATERIAL BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS the City of Azusa, California ("City") and BROOKFIE1,l) ROSEDALE 65 LLC ("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 54057-13 ("Public Improvements"); WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Agreement for Completion of Pubic Improvements dated 2011 ("Improvement Agreement"); WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and WHEREAS, Principal is required to furnish a bond in connection with the Improvement Agreement providing that if Principal or any of its subcontractors shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for, or about the performance of the Public Improvements, or for any work or labor done thereon of any kind, or for amounts due under the provisions of Title 15 (commencing with section 3082) of Part 4 of Division 3 of the California Civil Code, with respect to such work or labor, that the Surety on this bond will pay the same together with a reasonable attorney's fee in case suit is brought on the bond. of America NOW, THEREFORE, Principal and General. Insurance Company("Surety"), a corporation organized and existing under the laws of the State of Washington _ , and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the Public Improvements, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to the Public Improvements to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid excepting the Principal, the sum of ONE HUNDRED EIGHTEEN THOUSAND ONE HUNDRED FIFTY-TWO DOLLARS AND TWENTY ONE CENTS ORANGEWMARTINED33457. 123 (S 118,152.21), said sum being not less than 100% of the total cost of the Public Improvements under the terms of the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal, his or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Public Improvements, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 3181, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein. As part of the obligation secured hereby, and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. This bond is executed and filed to comply with Section 66499 et se . of the California Government Code as security for payment to contractors, subcontractors, and persons furnishing labor, materials, or equipment for construction of the Public Improvements or performance of the Improvement Agreement. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition. ORANGENMARTINEZl33457. 124 71 IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney -in -Fact at Toronto, Canada this 30th day of .lune -2011- . 2011. General Insurance Company of America P- ADRIAWiM EY ffirint name NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING COMPANY MUST BE ATTACHED TO THIS BOND. ORANGENMARTINEZl33457. 125 �Z CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Obefore me, , 4 stx Sow; M-KY1, � �1 YK. ! i A� a Here Insert Piame an i(re of the 0fear personally appeared Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(j) whose name(,) (&re subscribed to the within instrument and acknowledged to me that a s�they executed the same in ii /her he++ authorized capacity", and that by &pIherr hreir signature($) on the instrument the person(t), or the entity upon behalf of which the person(j) acted, executed the instrument. JENNA S. SCHERMAN Commission # 1889982 1 certify under PENALTY OF PERJURY under the z% Notary Pubtli CoCalifornia laws of the State of California that the foregoing My unty Comm. Expires May 18, 2014 paragraph is true and correct. WITNESS my hand and official seal. Signature: A Place Notary Seal Above OPTIONAL - Signalure of Notary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above _.._ Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer— Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ Attorney in Fact ❑ Trustee ❑ General Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 2009 National Notary Association • NationalNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT I a Z a R a a a a a a N a a 0 N a a a a a a a a. a a a N N N N a a N a a a -■ a a a a a a a a N a a a a a a N.■..... ... N a .. . a. a . a. State of California County of _ On Public, personally appeared SS. before me, Notary ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) .. R. R N N N.• .. a R g a N.. R N a N N a R R. a R a N a N..• Rea .. R .. y R a a• .. 11 N a. a. R a N R R. R N... a R. a a a N N. OPTIONAL INFORMATION Date of Document Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known Paper Identification Credible Witness(es) Capacity of Signer: Trustee Power of Attorney CEO/CFO/COO President / Vice -President / Secretary / Treasurer Other: Other Information - ORANGEWMARTMZl33457. 126 Thumbprint of Signer F] Check here if no thumbprint or fingerprint is available. EXHIBIT "C" SURETY BONDS AND OTHER SECURITY TRACT NO. 54057-13 As evidence of understanding the provisions contained in this Agreement, and of the Developer's intent to comply with same, the Developer has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto: PERFORMANCE BOND PRINCIPAL AMOUNT: $118,152.21 Surety: General Insurance Company of America Attorney-in-fact: Address: c/o Liberty mutual urety . -�. Avenue Suite 1700 Seattle, WA 98154 MATERIAL AND LABOR BOND PRINCIPAL AMOUNT _$118,152.2I Surety: General Insurance Company of America Attorney-in-fact: Address: c/o Liberty Mutual Surety -1QQ v nue Suite 1.700 Seattle, WA 98154 CASH MONUMENT SECURITY: S11,750.00 Amount deposited per Cash Receipt No. Date: ORANGENMARTINEZ\33457. 119 Bond No: TM 5123576 / 01104787 Performance Bond & Labor and Material Bond ACKNOWLEDGEMENT OF SURETY CITY OF TORONTO PROVINCE OF ONTARIO On this 30"' day of June, 2011, before me personally came P. Martin, to me known, who, being by me duly sworn, did depose and say that she is the Attorney-in-fact of General Insurance Company of America, the corporation described in and which executed the within instrument; that she knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that she signed her name thereto by like order; and that the liabilities of said corporation do not exceed its assets as ascertained in the manner provided by law. �y r 5wamaie Tulshnm, a cava zioner, etc, city aF TOYCJM. far The Guarencer Company of Rod Amaka. Expires July 2, 2013. _ _ THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. 4480833-..-,- f This Power of Attorney limits the acts of those named herein, and they have no authority to bind the Company except in the manner and to the extent tt j herein stated. GENERAL INSURANCE COMPANY OF AMERICA SEATTLE, WASHINGTON POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: That General Insurance Company of America (the "Company"), a Washington stock insurance company, pursuant to and by authority of the By-law and Authorization hereinafter set forth, does hereby name, constitute and appoint DINA AMARO-ELIAS, H. CHRISTIE, ROBERT DEMPSEY, NELSON DEQUINTAL, D.R. KEARNS, RICHARD LONGLAND, P. MARTIN, S. REES, MARK SKANES, CHRIS WATTERS, ALL OF THE CITY OF NORTH YORK, STATE OF ONTARIO. ............................ ...................... .................................................................................................................................................................................................................... each individually it there be more than one named, its true and lawful attorney-in-fact to make, execute, seal, acknowledge and deliver, for and on Its behalf as surety and as its act and deed, any and all undertakings, bonds, recognizances and other surety obligations in the penal sum not exceeding TWENTY MILLION AND 00I10f]***xkRk*#x##* ****** DOLLARS ($ 20,000,000.00"w*"**►k*""" *****x) each, and the execution of such undertakings, bonds, recognizances and other surety obligations, in pursuance of these presents, shall be as binding upon the Company as If they had been duly signed by the president and attested by the secretary of the Company in their own proper persons. executed the said power of attorney is an Assistant Secretary specially authorized by the chairman or the president to appoint attorneys -in -fact as provided in Article IV, Section 12 of the By-laws of General Insurance Company of America. This certificate and the above power of attorney may be signed by facsimile or mechanically reproduced signatures under and by authority of the following vote of the board of directors of General Insurance Company of America at a meeting duly called and held on the 18th day of September, 2009. VOTED that the facsimile or mechanically reproduced signature of any assistant secretary of the company, wherever appearing upon a certified copy of any power of attorney issued by the company in connection with surety bonds, shall be valid and binding upon the company with the same force and effect as though manually affixed. IN STIMONY HERhereunto subscribed my na and affixed the corporate seal of the said company, this 30_day of k” I .�;�! David M. Care ;•Assistant Secretary That this power is made and executed pursuant to and by authority of the following By-law and Authorization: a 'a ARTICLE IV - Execution of Contracts: Section 12. Surety Bonds and Undertakings. N C Any officer or other official of the Corporation authorized for that purpose in writing by the Chairman or the President, and subject to such limitations CL as the Chairman or tha Presldent may prescribe, shall appoint such attorneys -in -fact, as may be necessary to act in behalf of the Corporation to make, 5 execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety obligations. Such attorneys -In- 3 Y W fact, subject to the limitations set forth in their respective powers of attorney, shall have full power to bind the Corporation by their signature and X! +W, executed, such instruments shall be as binding as if signed by the president and attested by the secretary. M By the following instrument the chairman or the president has authorized the officer or other official named therein to appoint attorneys -in -fact: _ C ;u CD Pursuant to Article IV, Section 12 of the By-laws, Garnet W. Elliott, Assistant Secretary of General Insurance Company of America, is authorized to m appoint such attorneys -in -fact as may be necessary to act in behalf of the Corporation to make, execute, seal, acknowledge and deliver as surety 0 U) dany and all undertakings, bonds, recognizances and other surety obligations. rul _ That the By-law and the Authorization set forth above are true copies thereof and are now in full force and effect. 0 Q n C IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Corporatlon and the corporate seal of General 0) Insurance Company of America has been affixed thereto in Plymouth Meeting, Pennsylvania this 24th day of March , d O 2011 3: O *; :;: GENERAL INSURANCE COMPANY OF AMERICA • y 0 tss y By Garnet W. Elliott, Assistant Secretary OCOMMONWEALTH OF PENNSYLVANIA ss E W COUNTY OF MONTGOMERY TO On this 24th day of March 2011 before me, a Notary Public, personally came Garnet W. Elliott, to me known, and m 0 a acknowledged that he is an Assistant Secretary of General Insurance Company of America; that he knows the seal of said corporation; and that he executed C CV cc C the above Power of Attorney and affixed the corporate seal of General Insurance Company of America thereto with the authority and at the direction of said E N *>„ corporation. Z r0a L IN TESTIMONY WHEREO 6, W, Io subscribed my name and affixed my notarial seal at Plymouth Meeting, Pennsylvania, on the day and year %-00 O o first above written. ��r �aNW _ ' 7 NdoW E�al -,J rureua Paadllta, notary PUM; TT 8y 0? I— OF ulynlnulh Twrl., Mwitgtweiy Cu{IIr1y -- , tr'yi:anPr3;,l nL'-'>�1frMar-28,2AM T&resa Pastella, Notary Public CERTIFICATE ti's Finer„sr, P� mry�cnla Ansxvl4rr, il! HW�IS�s �• 4'5'Yi`f�� �G 1, the undersigned, Asr#is General Insurance Company of America, do hereby certify that the original power of attorney of which the foregoing, is a full, true and arreet•aopy, is in fu€1 force and effect on the date of this certificate; and I da further certify that the officer or official who executed the said power of attorney is an Assistant Secretary specially authorized by the chairman or the president to appoint attorneys -in -fact as provided in Article IV, Section 12 of the By-laws of General Insurance Company of America. This certificate and the above power of attorney may be signed by facsimile or mechanically reproduced signatures under and by authority of the following vote of the board of directors of General Insurance Company of America at a meeting duly called and held on the 18th day of September, 2009. VOTED that the facsimile or mechanically reproduced signature of any assistant secretary of the company, wherever appearing upon a certified copy of any power of attorney issued by the company in connection with surety bonds, shall be valid and binding upon the company with the same force and effect as though manually affixed. IN STIMONY HERhereunto subscribed my na and affixed the corporate seal of the said company, this 30_day of k” I .�;�! David M. Care ;•Assistant Secretary , 1 1 77��7 GENERAL INSURANCE COMPANY OF AMERCIA �r� • FINANCIAL STATEMENT — DECEMBER 31, 2010 Assets Liabilities Cash and Bank Deposit ....................................... $ 40,425,026 Unearned Premiums........................................ ............................................... $ 446,490,508 *Bonds — U.S Government :................................ 129,739,481 Reserve for Claims and Claims Expense................. 1,004,982,471 'Other Bonds ........................................................ 1,369,721,998 Funds Held Under Reinsurance Treaties ................. 0 Reserve for Dividends to Policyholders .................. 86,237 *Stocks.................................................................. 73,763,142 Additional Statutory Reserve .................................. 0 Real Estate.......................................................... 0 Reserve for Commissions, Taxes and Agents' Balances or Uncollected Premiums....... 299,480,778 Other Liabilities ................................................ 218,444.879 Accrued Interest and Rents ................................. 17,610,975 Toil'""'"""""'""'»." .. .. ......... 1,670,004,095 ... Other Admitted Assets ........................................ 14$,873,842 Special Surplus Funds .............. $ 11,663,352 Capital Stock ............................... 5,000,000 Paid in Surplus ............................ 170,891,058 Unassigned Surplus.: ................... 222,056,737 Total Admitted Assets ................................. 52.079, 15,242 Surplus to Policyholders ............................... 409,611,147 Total Liabilities and Surplus ..................»..»...... X2.079,615,242 nRABonds are stated at amortized or investment value; Stocks at Association Market Values. The foregoing financial information is taken from General Insurance Company of America's financial statement filed with the state of Washington Department of Insurance. I, TIM MIKOLAJEWSKI, Vice -President of General Insurance Company of America, do hereby certify that the foregoing is a true, and correct statement of the Assets and Liabilities of said Corporation, as of December 31, 2010, to the best of my knowledge and belief_ IN WITNESS WHEREOF, I have hereunto set nay hand and affixed the seal of said Corporation at Seattle, Washington, this 30th day of March, 2011. 51262GUa 2111 1 Vice -President 2552 WHITE ROAD, SUITE B - IRVINE, CA 92614-6236 ks DEN & 949/660-0110 FAX 949/660-0418 S C C IATE S CIVIL ENGMERS - LAND SURVEYORS - PLANNERS June 13, 2011 Elroy L. 'Kiepke City Engineer City of Azusa 213 E. Foothill Boulevard Azusa, CA 91702 Re: City of Azusa Tract No. 054057-13 Monument Bond Estimate Dear Mr. Kiepke, WJN: 1425-842-013 This letter is to inform you that the monument bond amount for city of Azusa Tract No. 054057-13 has been established at $ 11,750.00. If you should have any questions or need additional information concerning this matter, please call me at (949) 660-0110. Sincerely, 0L LZil en Oice Pice President, PLS 7914 No. 7914 Exp. 12-31-41 G:\projdata\1425\DWG\Tract-13\Map\Tract 13 Monument Letter.doc _ U � �w i. AGENDA REGULAR MEETING OF THE CITY COUNCIL, AND THE REDEVELOPMENT AGENCY AZUSA AUDITORIUM MONDAY, JULY 18, 2011 213 EAST FOOTHILL BOULEVARD 6:30 P.M. AZUSA CITY COUNCIL JOSEPH R. ROCHA MAYOR KEITH 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 onfile in the Office o the Ci Clerk and are available or public inspection at the f /}' / h' f p p Ctry 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 ofthe City Council meeting. When called, each person may address any item on or off the agenda during the public participation. 6:30 P.M. CEREMONIAL 1.Presentation of Proclamation to City Manager Francis M.Delach in honor of his retirement from the City of Azusa. 2.Presentation of Proclamation to Chief of Police Robert Garcia in honor of his retirement from the City of Azusa. 3. Certificates of Recognition to Azusa National Little League Rays—Juniors, for winning District 19 Tournament of Champions Junior Division and Azusa National Little League Ironbirds — Minors, for winning District 19 Tournament of Champions Minor Division. 07/18/11 1 _ i CLOSED SESSION , 1. 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. REAL PROPERTY NEGOTIATIONS (Gov. Code Sec. 54956.8), Agency Negotiators: City Manager Delach and Assistant City Manager Makshanoff Under Negotiation: Price and Terms of Payment a. BLOCK 36 Address: APN 8611-003- 921 Negotiating Parties: Lewis Retail Centers b. 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 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 Negotiating Parties: Lewis Retail Centers c. FORMER TRANSPORTATION YARD Address: 943 N. Vernon Ave, Azusa, CA 91702 Negotiating Parties: Mr. Art Ramirez 3. CONFERENCE WITH LABOR NEGOTIATOR(Gov. Code Sec. 54957.6) Agency Negotiators: City Manager Delach Organization: Executive—Negotiation of Executive Any person wishing to comment on any of the Closed Session items listed above may do so now. 7:30 P.M. - REGULAR MEETING OF THE CITY COUNCIL. 1. Call to Order 2. Pledge to the Flag 3. Invocation' Pastor Woody Calvary of Praise Chapel of Azusa A. PUBLIC PARTICIPATION (Person/Group shall be allowed to speak without interruption up to f ve (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.) 07/18/11 - 2 - B. REPORTS, UPDATES, AND ANNOUNCEMENTS FROM STAFF/COUNCIL 1. Mayor Rocha—Mr. Todd R. Morgan of Vet Hunters to report on Homeless Veterans. 2. Presentation of a donation to California Resource Connections,Inc. from Athens Services, to complete the Azusa Community Garden at Memorial Park. 3. Report on the construction work at the intersections of Foothill and San Gabriel,Foothill and Alameda,and Foothill and Azusa. 4. Update on 0 of July Fireworks. 5. Update on the Redevelopment Plan. C. SCHEDULED ITEMS 1. PUBLIC HEARING - 2011 JUSTICE ASSISTANCE GRANT APPLICATION RECOMMENDED ACTION: Open the Public Hearing;receive testimony;close the Hearing. Approve the 2011 Justice Assistance Grant (JAG)application and utilize funds to further supplement the upgrade of the mobile digital computer(MDC) System. 2. CONSIDERATION OF ORDINANCES TO COMPLY WITH VOLUNTARY ALTERNATIVE REDEVELOPMENT PROGRAM TO PERMIT THE CONTINUED EXISTENCE AND OPERATION OF THE AZUSA REDEVELOPMENT AGENCY ANoRECOMMENDED ACTION: �(1) Read title, waive further reading introduce and adopt Urg ncy 11, entitled: "AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA DETERMINING IT WILL COMPLY WITH THE VOLUNTARY ALTERNATIVE REDEVELOPMENT PROGRAM PURSUANT TO PART 1.9 OF DIVISION 24 OF THE CALIFORNIA HEALTH AND SAFETY CODE IN ORDER TO PERMIT THE CONTINUED EXISTENCE AND OPERATION OF THE AZUSA REDEVELOPMENT AGENCY" (2) Read title, waive further reading and approve introduction and first reading of the Ordinance entitled: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA DETERMINING IT WILL COMPLY WITH THE VOLUNTARY ALTERNATIVE REDEVELOPMENT PROGRAM PURSUANT TO PART 1.9 OF DIVISION 24 OF THE CALIFORNIA HEALTH AND SAFETY CODE IN ORDER TO PERMIT THE CONTINUED EXISTENC AND OPERATION OF THE AZUSA REDEVELOPMENT A ENCY" 07/18/11 �1' C - 3 - 1 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 SPECIAL MEETING JUNE 13TH AND THE REGULAR MEETING OF JULY 5, 2011. . RECOMMENDED ACTION: Approve Minutes as written. 2. HUMAN RESOURCES ACTION ITEMS. RECOMMENDED ACTION: Approve Personnel Action Requests in accordance with the City of Azusa Civil Service Rules and applicable Memorandum of Understanding(s). 3. LEASE OF FIVE LONG TERM CAPABILITY HOSTING (LATCH) MODULES FROM AARDVARK TACTICAL. INC. ATHENA PROGRAM. RECOMMENDED ACTION: Approve the leasing of five LATCH modules from Aardvark Tactical,Inc.ATHENA program in an amount not to exceed$40,204.76 over the course of the five year services agreement. Approve the lease based on a sole-source manufacturer as authorized by AMC Section 2-523(d) when there is no competitive market. This type of lease agreement provides for a fixed annual cost to host the modules at the Police Department and pay for what is consumed, broken or destroyed during their deployment. 4. FINAL TRACT MAP NO. 54057-13 RECOMMENDED ACTION Act and find as follows: 1. That this project complies with the General Plan and is consistent with the approved tentative map and any amendments thereto. 2. The dedications as offered on the maps are hereby approved and accepted. 3. The City Council approves and authorizes the Mayor to execute the attached AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS FOR Tract No. 54057-13 to construct the required public improvements and also accept the attached Faithful Performance Bond in the amount of$118,152.21,the attached Labor and Materials Bond for$118,152.21, as guaranteed by General Insurance Company of America, and a cash Monumentation Bond in the amount of$11,750. 4. That pursuant to Section 66436(a)(3)(A)(i-vii)of the Subdivision Map Act, the City Council hereby finds that the development of the property,in the manner set forth on the subject division of land,will not unreasonably interfere with the free and complete exercise of the easements held by Azusa Land and Water Company, Starfield Azusa Heritage Oaks,LLC, Southern California Edison Company, Monrovia Nursery Company and Rosedale Land Partners II,LLC and accepts the map without the signatures of said easement holders. 5. Approve Final Tract Map No. 54057-13. 6.The City Clerk is hereby authorized to endorse on the face of the maps the certificates,which embodies the approval of said maps and acceptance of dedications. 07/18/11 - 4 - r 5. MATRIX SOFTWARE ANNUAL MAINTENANCE AND SUPPORT AGREEMENT. RECOMMENDED ACTION: Waive formal sealed bids in accordance with Azusa Municipal Code Section 2-523 section B, computer software maintenance services and 2-523 section C, no competitive market, and approve the software maintenance and support contract from Matrix Imaging, in the amount of$12,929.00. 6. NOVELL SOFTWARE ANNUAL MAINTENANCE SUPPORT AND LICENSING AGREEMENT. RECOMMENDED ACTION: Waive formal sealed bids in accordance with Azusa Municipal Code Section 2-523 section B, computer software maintenance services and approve the software maintenance support and licensing from CDW-G, in the amount of$19.845.00 7. SIRSI LIBRARY SOFTWARE ANNUAL MAINTENANCE AND SUPPORT AGREEMENT. RECOMMENDED ACTION: Waive formal sealed bids in accordance with Azusa Municipal Code Section 2-523 section B, computer software maintenance services and 2-523 section C,no competitive market and approve the annual software maintenance and support agreement from SIRSI Corporation, in the amount of$27,984.33. n 8. AGREEMENT RENEWAL WITH LA WORKS FOR FY 2011/12 RECOMMENDED ACTION Approve and execute the attached agreement with LA Works for Fiscal Year 2011/12 in an amount not to exceed $66,116. 9. EXTENSION OF TERMS OF PROFESSIONAL SERVICES AGREEMENT WITH B/R PARTNERS. RECOMMENDED ACTION: Approve an amendment to the existing B/R Partners agreement, extending it to June 30,2012,and authorize the City Manager to sign the amended agreement. 10. PURCHASE OF THREE FORD POLICE INTERCEPTOR VEHICLES AND ONE CHEVY TAHOE POLICE VEHICLE FROM WONDRIES FLEET GROUP RECOMMENDED ACTION: Approve the purchase of three 2011 Ford Police Interceptor vehicles and one Chevy Tahoe Police Vehicle Package from Wondries Fleet Group, in an amount not to exceed$104,553.53 and approve the purchase of these vehicles based on the competitive bid process completed by the County of Los Angeles as authorized under AMC Section 2-523 (e). 07/18/11 - 5 - 11. ASSIGNMENT AND ASSUMPTION OF FUNDING AND ACQUISITION AGREEMENT—CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO. 2005-1. RECOMMENDED ACTION: Approve and authorize execution of the Assignment and Assumption of Funding and Acquisition Agreement. 12. AZUSA POLICE MANAGEMENT ASSOCIATION CONTRACT - APPROVAL OF TERMS OF THE "MEMORANDUM OF UNDERSTANDING"(MOU)AUGUST 1,2010 THRU JULY 31,2015. RECOMMENDED ACTION: Approve the terms of the "Memorandum of Understanding". 13. WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE CITY. RECOMMENDED ACTION: Adopt Resolution No. 11-059. CONVENE AS THE REDEVELOPMENT AGENCY E. AGENCY SCHEDULED ITEMS. None. F. AGENCY CONSENT CALENDAR The Consent Calendar adopting the printed recommended actions will be enacted with one vote. If Boardmembers or Staff wish to address any item on the Consent Calendar individually, it will be considered under SPECIAL CALL ITEMS. 1. APPROVAL OF THE MINUTES OF THE REGULAR MEETING OF JULY 5.2011. RECOMMENDED ACTION: Approve Minutes as written. 2. WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE AGENCY. RECOMMENDED ACTION: Adopt Resolution No. 11-R33. 07/18/11 - 6 - $ G. ORDINANCES/SPECIAL RESOLUTIONS 1. PROPOSED ORDINANCE APPROVING ZONE CHANGE Z-2009-1 TO CHANGE THE ZONING DESIGNATION OF A PORTION OF LAND FROM DWL (DISTRICT WEST END LIGHT INDUSTRIAL)TO DW(DISTRICT WEST END INDUSTRIAL) (Public Hearing held on July 5,2011) RECOMMENDED ACTION: Waive further reading and adopt Ordinance No. 11-012. 2. PROPOSED ORDINANCE APPROVING ZONING CODE AMENDMENT ACA 230 ALLOWING 9 PERATING HOURS BETWEEN 9:00 P.M. AND 7:00 A.M. IN THE DW AND DWL ZONES ITH A USE PERMIT. (Public Hearing held on July 5, 2011) RECOMMENDED ACTION: Waive further reading and adopt Ordinance No. 11-013. 3. _P OPOSED ORDINANCE APPROVING A DEVELOPMENT AGREEMENT -FOR THE ONSTRUCTION AND OPERATION OF A MATERIAL RECOVERY FACILITY AND RANSFER STATION, LOCATED AT 1501 W. GLADSTONE STREET RECOMMENDED ACTION: Waive further reading and adopt Ordinance No. 11-014. H. ADJOURNMENT 1. Adjourn in memory of Christopher Adam Vasquez. UPCOMING MEETINGS: July 25, 2011, Utility Board Meeting—6:30 p.m. Azusa Light and Water Conference Room July 28, 2011, City Hall on the Move — 5:30 p.m. Concerts in the Park, Memorial Park September 6, 2011 (Tuesday), City Council Meeting—6:30 p.m. Azusa Auditorium September 19, 2011, City Council Meeting — 6:30 p.m. Azusa Auditorium In compliance with Government Code Section 54957.5, agenda materials are available for inspection by members of the public at the following locations: Azusa City Clerk's Office-213 E. Foothill Boulevard,Azusa CityLibrary- 729N. 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. 07/18/11 - 7 - 1 FARM WN14"W", i PUBLIC HEARING TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT B. GARCIA, CHIEF OF POLICE VIA: F.M. DELACH, CITY MANAGER Ir DATE: JULY 18, 2011 SUBJECT: 2011 JUSTICE ASSISTANCE GRANT APPLICATION RECOMMENDATIONS It is recommended that City Council approve moving forward with the 2011 Justice Assistance Grant (JAG) application and utilize such funds to further supplement the upgrade of the mobile digital computer (MDC) system. BACKGROUND The Azusa Police Department is eligible to receive funds from the Department of Justice Edward Byrne Memorial Justice Assistance Grant(JAG) Program. This is a non-competitive Federal grant program. A copy of the grant application.is attached and the total award amount is $19,933. The monies may be spent over a two year period and the City of Azusa will serve as the fiscal agency on this grant. FISCAL IMPACT There will be no immediate fiscal impact to the general fund; however, future, regular, and on- going maintenance costs for the mobile digital video camera project will either be funded from the general fund, grant funds and/or asset seizure funds. Prepared by: Cynthia Haebe, Crime Analyst Sam Gonzalez, Captain 1 Page 1 of 2' c APPLICATION FOR 2. DATE SUBMITTED Applicant Identifier FEDERAL ASSISTANCE July 07, 2011 1. TYPE OF SUBMISSION 3. DATE RECEIVED BY State Application Identifier STATE Application Construction 4. DATE RECEIVED BY Federal Identifier FEDERAL AGENCY , S.APPLICANT INFORMATION Legal Name Organizational Unit CITY OF AZUSA POLICE DEPARTMENT Address Name and telephone number of the person to be contacted on 725 N ALAMEDA AVENUE matters involving this AZUSA, California application 91702-2514 HAEBE, CYNTHIA (626) 260-4949 6. EMPLOYER IDENTIFICATION NUMBER(EIN) 7. TYPE OF APPLICANT 95-6000674 Municipal 8. TYPE OF APPLICATION 9.NAME OF FEDERAL AGENCY New Bureau of Justice Assistance 10. CATALOG OF FEDERAL DOMESTIC ASSISTANCE 11. DESCRIPTIVE TITLE OF APPLICANT'S PROJECT NUMBER: 16.738 CFDA EDWARD BYRNE MEMORIAL JUSTICE To purchase mobile display TITLE: ASSISTANCE GRANT PROGRAM computers for use in police vehicles. 12. AREAS AFFECTED BY PROJECT The City of Azusa 13. PROPOSED PROJECT 14. CONGRESSIONAL Start Date: July 21, 2011 DISTRICTS OF End Date: July 20, 2015 a. Applicant b. Project CA32 15. ESTIMATED FUNDING 16. IS APPLICATION Federal $19,933 SUBJECT TO REVIEW BY STATE EXECUTIVE ORDER Applicant $0 12372 PROCESS? State $0 https:Hgrants.Qjp.usdgj.gov/amsextemal/applicationReview.do?print=ves 07/07/2011 Page 2 of 2 �7 Local $0 Program is not covered by E.O. Other $0 12372 Program Income $0 17. IS THE APPLICANT DELINQUENT ON ANY TOTAL $19,933 FEDERAL DEBT? N 18. TO THE BEST OF MY KNOWLEDGE AND BELIEF, ALL DATA IN THIS APPLICATION PREAPPLICATION ARE TRUE AND CORRECT, THE DOCUMENT HAS BEEN DULY AUTHORIZED BY GOVERNING BODY OF THE APPLICANT AND THE APPLICANT WILL COMPLY WITH THE ATTACHED ASSURANCES IF THE ASSISTANCE IS REQUIRED. Close Window. https://grants.ojp.usdoj.gov/gmsexternal/applicationReview.do?print—ves 07/07/2011 0 BUDGET NARRATIVE CITY OF AZUSA The City of Azusa Police Department plans to use the newly appropriated Justice Assistance Grant (JAG) Program funds to purchase Mobile Display Computers (MDCs) for our police vehicles. The approximate cost of each MDC including installation, software and configuration is $6287. We also plan to purchase a bracket and mount to be used in our Civilian Officer vehicle at an approximate cost of$1,073. 1 PROGRAM NARRATIVE CITY OF AZUSA The City of Azusa Police Department plans to use the newly appropriated Justice Assistance Grant (JAG) Program funds to purchase mobile display computers (MDCs) for our police vehicles. Our existing MDCs have been in service beyond their life expectancy (seven years) and are in need of replacement. As soon as funds have been officially released, we plan to purchase the equipment based on our city's procurement guidelines. We anticipate that this will take approximately two months from the time the funds are released to the installation and activation of MDCs in the field. 1 Assurances Page 1 of I c " OMB APPROVAL t NUMBER 1121-0140 a � EXPIRES 12/31/2012 STANDARD ASSURANCES The Applicant hereby assures and certifies compliance with all applicable Federal statutes, regulations, policies, guidelines, and requirements, including OMB Circulars A-21, A-87,A-102, A-110, A-122, A-133; Ex. Order 12372 (intergovernmental review of federal programs); and 28 C.F.R. pts. 66 or 70 (administrative requirements for grants and cooperative agreements). The applicant also specifically assures and certifies that: 1. It has the legal authority to apply for federal assistance and the institutional, managerial, and financial capability(including funds sufficient to pay any required non-federal share of project cost) to ensure proper planning, management, and completion of the project described in this application. 2. It will establish safeguards to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest, or personal gain. r 3. It will give the awarding agency or the General Accounting Office, through any authorized representative, access to and the right to examine all paper or electronic records related to the financial assistance. '4. It will comply with all lawful requirements imposed by the awarding agency, specifically including any applicable regulations, such as 28 C.F.R. pts. 18, 22, 23, 30, 35, 38, 42, 61, and 63, and the award term in 2 C.F.R. § 175.15(b). 5. It+will assist the awarding agency (if necessary) in assuring compliance with section 106 of the National Historic Preservation Act of 1966 (16 U.S.C. §470), Ex. Order 11593 (identification and protection of historic properties), the Archeological and Historical Preservation Act of 1974(16 U.S.C. §469 a-1 et seq.), and the National Environmental Policy Act of 1969 (42 U.S.C. §4321). 6. It will comply (and will require any subgrantees or contractors to comply)with any applicable statutorily-imposed nondiscrimination requirements, which may include the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. § 3789d); the Victims of Crime Act(42 U.S.C. § 10604(e)); The Juvenile Justice and Delinquency Prevention Act of 2002 (42 U.S.C. § 5672(b)); the Civil Rights Act of 1964 (42 U.S.C. §2000d); the Rehabilitation Act of 1973 (29 U.S.C. § 7 94); the Americans with Disabilities Act of 1990 (42 U.S.C. § 12131-34); the Education Amendments of 1972 (20 U.S.C. §§1681, 1683, 1685-86); and the Age Discrimination Act of 1975 (42 U.S.C. §§6101-07); see Ex. Order 13279 (equal protection of the laws for faith-based and community organizations). 7. If a governmental entity: a. it will comply with the requirements of the Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §4601 et seq.), which govern the treatment of persons displaced as a result of federal and federally-assisted programs; and b. it will comply with requirements of 5 U.S.C. §§ 1501-08 and §§7324-28,which limit certain political activities of State or local government employees whose principal employment is in connection with an activity financed in whole or in part by federal assistance. Close Window https://grants.oj p.usdoj.gov/gmsextemal/di splayAssurancesTextActi on.st?m ethod=assure... 07/07/2011 z Certifications Page 1 of 3 hl>U.S. DEPARTMENT OF JUSTICE OFFICE OF JUSTICE PROGRAMS OFFICE OF THE CHIEF FINANCIAL OFFICER CERTIFICATIONS REGARDING LOBBYING; DEBARMENT, SUSPENSION AND OTHER RESPONSIBILITY MATTERS; AND DRUG-FREE WORKPLACE REQUIREMENTS Applicants should refer to the regulations cited below to determine the certification to which they are required to attest. Applicants should also review the instructions for certification included in the regulations before completing this form. Acceptance of this form provides for compliance with certification requirements under 28 CFR Part 69, "New Restrictions on Lobbying,"2 CFR Part 2867, "DOJ Implementation of OMB Guidance of Nonprocurement Debarment and Suspension,"and 28 CFR Part 83, "Government-wide Debarment and Suspension,"and Government-wide Requirements for Drug-Free Workplace (Grants)."The certifications shall be treated as a material representation of fact upon which reliance will be placed when the Department of Justice determines to award the covered transaction, grant, or cooperative agreement. 1. LOBBYING As required by Section 1352, Title 31 of the U.S. Code, and implemented at 28 CFR Part 69, for persons entering into a grant or cooperative agreement over$100,000, as defined at 28 CFR Part 69, the .applicant certifies that: (a) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the making of any Federal grant,.the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal grant or cooperative agreement; (b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form - LLL, "Disclosure of Lobbying Activities," in accordance with its instructions; (c)The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all sub-recipients shall certify and disclose accordingly. 2. DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS (DIRECT RECIPIENT) As required by Executive Order 12549, Debarment and Suspension, and implemented at 2 CFR Part 2867, for prospective participants in primary covered transactions, as defined at 2 CFR Section 2867.20(a): A. The applicant certifies that it and its principals: (a)Are not presently debarred, suspended, proposed for debarment, declared ineligible, sentenced to a denial of Federal benefits by a State or Federal court, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three-year period preceding this application been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public(Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c)Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity(Federal, State, or local)with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not within a three-year period preceding this application had one or more public transactions (Federal, https://grants.of p.usdoj.gov/gmsexternal/d i splayAssurancesTextActi on.st?method=certify... 07/07/2011 Certifications Page 2 of 3 State, or local) terminated for cause or default. B. Where the applicant is unable to certify to any of the statements in this certification, he or she shall attach an explanation to this application. 3. DRUG-FREE WORKPLACE (GRANTEES OTHER THAN INDIVIDUALS) As required by the Drug-Free Workplace Act of 1988, and implemented at 28 CFR Part 83, Subpart F. for grantees, as defined at 28 CFR Sections 83.620 and 83.650: A. The applicant certifies that it will or will continue to provide a drug-free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b) Establishing an on-going drug-free awareness program to inform employees about (1) The dangers of drug abuse in the workplace; (2) The grantee's policy of maintaining a drug-free workplace; (3)Any available drug counseling, rehabilitation, and employee assistance programs; and (4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a); (d) Notifying the employee in the statement required by paragraph (a)that, as a condition of employment under the grant, the employee will (1)Abide by the terms of the statement; and (2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction; (e) Notifying the agency, in writing, within 10 calendar days after receiving notice under subparagraph (d)(2)from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to: Department of Justice, Office of Justice Programs,ATTN: Control Desk, 810 7th Street, N.W., Washington, D.C. 20531. Notice shall include the identification number(s) of each affected grant; (f) Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted (1)Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; (g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e), and (f). As the duly authorized representative of the applicant, I hereby certify that the applicant will comply with the above https:Hgrants.ojp.usd of.gov/gm sexternal/d i splavAssurancesTextA cti on.st?method=certify... 07/07/2011 z Certifications Page 3 of 3 certifications. Close Window https://erants.ojp.usd of.gov/gmsexternal/d i sp I ayAssurancesTextActi on.st?method=certify... 07/07/2011 U,OF q2N C�tit! CITY COUNCIL AGENDA ITEM TO: HONORABLE MAYOR ANY COUNCIL/MEMBERS FROM: KURT CHRISTIANSEN, DIRECTOR OF ECONOMIC & COMMUNITY DEVELOPMENT l� VIA: F.M. DELACH, CITY MANAGER/ l`"N DATE: JULY 18, 2011 SUBJECT: CONSIDERATION OF ORDINANCES TO COMPLY WITH VOLUNTARY ALTERNATIVE REDEVELOPMENT PROGRAM TO PERMIT THE CONTINUED EXISTENCE AND OPERATION OF THE AZUSA REDEVELOPMENT AGENCY RECOMMENDATION It is recommended that the City Council take the following actions: 1. Read title and, by motion adopt by four-fifths vote, introduce and pass the attached Ordinance entitled: "AN URGENCY. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA DETERMINING IT WILL COMPLY WITH THE VOLUNTARY ALTERNATIVE REDEVELOPMENT PROGRAM PURSUANT TO PART 1.9 OF DIVISION 24 OF THE CALIFORNIA HEALTH AND SAFETY CODE IN ORDER TO PERMIT THE CONTINUED EXISTENCE AND OPERATION OF THE AZUSA REDEVELOPMENT AGENCY" 2. Read title and, by motion approve introduction and first reading of the attached Ordinance entitled: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA DETERMINING IT WILL COMPLY WITH THE VOLUNTARY ALTERNATIVE REDEVELOPMENT PROGRAM PURSUANT TO PART 1.9 OF DIVISION 24 OF THE CALIFORNIA HEALTH AND SAFETY CODE IN ORDER TO PERMIT THE CONTINUED EXISTENCE AND OPERATION OF THE AZUSA REDEVELOPMENT AGENCY" BACKGROUND As part of his proposed budget for fiscal year 2011-12, the Governor has included the capturing of constitutionally protected redevelopment dollars to balance the State budget. Although this proposal would appear to violate a number of provisions of State law, including those enacted by over 60 percent of the voters in November 2010 by the passage of Proposition 22, the Governor and Legislature enacted two budget trailer bills, Assembly Bills 1X 26 and 27, to effectuate their objectives. On June 28, 2011, despite protests across the state from the League of California Cities ("League"), the California Redevelopment Association ("CRA") and other-interested parties, the Governor signed these bills into law, which took effect immediately. Assembly Bill 1X 26 Assembly Bill 1X 26 immediately suspended all new redevelopment activities and incurrence of indebtedness, and dissolves redevelopment agencies effective October 1, 2011 (the 'Dissolution Act"). It does this by terminating virtually all otherwise legal functions of the redevelopment agency and mandating a liquidation of any assets for the benefit of local taxing agencies. Some debts would be allowed to be repaid, but any such remittances would be managed by a successor agency, which would function primarily as a debt repayment administrator. In general, the successor agency could not continue or initiate any new redevelopment projects or programs. The activities of the successor agency would be overseen by an oversight board, comprised of representatives of other taxing agencies, until such time as the remaining debts of the former redevelopment agency were paid off and all property taxes were redirected to local taxing agencies. Assembly Bill 1X 27 Assembly Bill 1X 27 allows redevelopment agencies that desire to avoid the consequences of the Dissolution Act to comply with the alternative redevelopment program described in Part 1.9 of AB 1X 27 (the "Alternate Redevelopment Program"). The Alternative Redevelopment Program establishes a so-called "voluntary" community remittance from each city. This community remittance, which some have labeled a "ransom", would commence in Fiscal Year 2011-12 for those cities and counties that had redevelopment project areas generating tax increment revenue in 2008-09, and immediately thereafter for those that did not. The amount of the community remittance varies by each redevelopment agency, depending on several factors, including the amount of tax increment funds already going to local schools and the breakdown of the basic general levy in each community. These payments are in addition to statutory payments made to all affected taxing agencies from tax increment revenue. The source of repayment from each city or county choosing to make the payment may include redevelopment tax increment revenues. Should the City make the community remittance in accordance with the Urgency Ordinance and the Ordinance attached to this Staff Report, the City and the Agency may enter into a reimbursement agreement at a future time whereby the Agency will transfer a portion of its tax increment to the City, in an amount not to exceed the annual remittance required that year for the purpose of financing redevelopment activities. i Amount of Community Remittance The State Director of Finance will notify the City of the actual amount of the community remittance by August 1, 2011 as determined based on a formula set forth in AB 1X 27. Subsequent annual community remittances will also be due as determined by the State Director of Finance. The City can appeal such amount by August 15, 2011 for Fiscal Year 2011-12, and any subsequent annual community remittance that may become due, if it believes the amount is incorrect based on the calculations contained in AB 1X 27. The community remittance to be made for fiscal year 2011-12 by the City is estimated to be $865.937. Legal Action Pending The League and CRA are preparing a legal challenge to AB 1X 26 and 27. However, until a stay is granted or the laws overturned by the courts, cities and counties which have redevelopment agencies must comply. It is the League and CRA's position that AB 1X 26 and 27 are inconsistent with various constitutional provisions which protect city and county property tax and redevelopment agency tax increment, including but not limited to Article XIIIA, section 25.5, Article XIIIA, section 1, Article XIII, section 24, Article XVI, section 6, Article XIIIB and Article XVI, section 16, of the California Constitution, and are therefore unlawful and unenforceable. ANALYSIS In the text of the attached Urgency Ordinance and the Ordinance, the Agency reserves the right, regardless of any community remittance made pursuant to-the ordinance, to challenge the legality of AB 1X 26 and 27. When AB 1X 26 and 27 are challenged, either by the Agency, the City, or another party with standing to challenge, and if a stay is granted, the City shall not be obligated to make any community remittances for the duration of the stay. Additionally, the Urgency Ordinance and the Ordinance provide that if AB 1X 26 and 27 are invalidated, the Urgency Ordinance and the Ordinance shall be invalidated and all community remittances pursuant to the Urgency Ordinance and the Ordinance shall be refunded,with interest. Notwithstanding the outcome of a court stay or action to overturn AB 1X 26 and 27, if a city or county desires to continue its redevelopment agency, AB IX 27 sets forth a number of actions which are to be completed by November 1, 2011: 1. A statement of indebtedness must be filed not only with the County Auditor-Controller, per existing law by October 1, but also with the Department of Finance, for independent review. The statement of indebtedness is to identify the financial obligations (debts) of the redevelopment agency as of October 1 of each year and establishes the amount of future tax increment revenue in that year and subsequent years the redevelopment agency will require to meet these obligations. 2. On or before November 1, a city or county must enact an ordinance to comply with the "voluntary" payment obligations, and notify the Department of Finance, State Controller, and County Auditor-Controller of this action. 3. If such an ordinance is to be enacted after October 1, the city or county should adopt a nonbinding resolution indicating their intentions and providing notice to the Department of Finance, State Controller, and County Auditor-Controller before October 1 concerning the nonbinding resolution. This action would have the effect of delaying dissolution until November 1, unless the ordinance is adopted prior to that date. The City Council may introduce the proposed Urgency Ordinance to comply with AB 1X 27 and adopt it by four-fifths vote upon making findings that the Urgency Ordinance is necessary for the immediate protection of the public peace, health and safety. The Urgency Ordinance will be effective immediately after adoption. The City Council may also introduce the proposed Ordinance to comply with AB 1X 27. Compliance with AB 1X 27 will be achieved upon completion of the second reading and adoption of the Ordinance, scheduled for September 6, 2011. The Ordinance will become effective 30 days after adoption at the second reading. CEQA The City is the lead agency concerning the Urgency Ordinance and the Ordinance pursuant to the California Environmental .Quality Act (codified as Public Resources Code Sections 21000 et seq.) ("CEQA") and the State CEQA Guidelines. City staff has determined that the Urgency Ordinance and the Ordinance is exempt from CEQA, pursuant to CEQA Guidelines Section 15378 (b)(4), because such authorizations are not considered a project subject to CEQA review. The community remittance is a government funding mechanism and fiscal activity, which does not involve any commitment to any specific project which may result in a potentially significant environmental impact. FISCAL IMPACT For the City, the fiscal year 2011-12 community remittance is estimated to be approximately $865,937, based on preliminary calculations prepared by the CRA. Subsequent annual community remittances will also be due, as determined based upon a formula set forth in AB 1 X 27. Under the Urgency Ordinance and the Ordinance, the City reserves the right to appeal the State Director of Finance's determination of the fiscal year 2011-12 community remittance, as set forth in AB 1 X 27, and subsequent annual community remittance that may become due. Attachments: 1. An Urgency Ordinance of the City Council of the City of Azusa determining it will comply with the voluntary Alternative Redevelopment Program pursuant to Part 1.9 of Division 24 of the California Health and Safety Code in order to permit the continued existence and operation of the Azusa Redevelopment Agency 2. An Ordinance of the City Council of the City of Azusa determining it will comply with the voluntary Alternative Redevelopment Program pursuant to Part 1.9 of Division 24 of,the California Health and Safety Code in order to permit the continued existence and operation of the Azusa Redevelopment Agency { ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DETERMINING IT WILL COMPLY WITH THE VOLUNTARY ALTERNATIVE REDEVELOPMENT PROGRAM PURSUANT TO PART 1.9 OF DIVISION 24 OF THE CALIFORNIA HEALTH AND SAFETY CODE IN ORDER TO PERMIT THE CONTINUED EXISTENCE AND OPERATION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA WHEREAS, the City Council of the City of Azusa ("City") approved and adopted the Redevelopment Plan ("Redevelopment Plan") for the Merged Central Business District and West End Redevelopment Project Area covering certain properties within the City (the "Project Area"); and ` WHEREAS, the Redevelopment Agency of the City of Azusa ("Agency") is engaged in activities to execute and implement the Redevelopment Plan pursuant to the provisions of the California Community Redevelopment Law(Health and Safety Code§33000,et seq.)("CRL");and WHEREAS, since adoption of the Redevelopment Plan, the Agency has undertaken redevelopment projects in the Project Area to eliminate blight, to improve public facilities and infrastructure, to renovate and construct affordable housing, and to enter into partnerships with private industries to create jobs and expand the local economy; and WHEREAS, over the next few years, the Agency hopes to implement a variety of redevelopment projects and programs to continue to eliminate and prevent blight, stimulate and expand the Project Area's economic growth, create and develop local job opportunities and alleviate deficiencies in public infrastructure, to name a few; and WHEREAS, as part of the 2011-2012 State budget bill, the California Legislature has recently enacted,and the Governor has signed,companion bills AB 1 X 26 and AB 1 X 27,requiring that each redevelopment agency be dissolved unless the community that created it enacts an ordinance committing it to making certain payments; and WHEREAS, specifically, AB 1X 26 prohibits agencies from taking numerous actions, effective immediately and purportedly retroactively, and additionally provides that agencies are deemed to be dissolved as of October 1, 2011; and WHEREAS, AB 1X 27 provides that a community may participate in an "Alternative Voluntary Redevelopment Program," in order to enable a redevelopment agency within that community to remain in existence and carry out the provisions of the CRL,by enacting an ordinance agreeing to comply with Part 1.9 of Division 24 of the Health and Safety Code; and 1 9 WHEREAS,the Alternative Voluntary Redevelopment Program requires that the community agree by ordinance to remit specified annual amounts to the county auditor-controller; and WHEREAS, under the threat of dissolution pursuant to AB 1X 26, and upon the contingencies and reservations set forth herein, the City shall make the Fiscal Year 2011-2012 community remittance, currently estimated to be Eight Hundred Thousand Dollars ($800,000). as well as the subsequent annual community remittances as set forth in the CRL; and WHEREAS, the City reserves the right to appeal the California Director of Finance's determination of the Fiscal Year 2011-2012 community remittance,as provided in Health and Safety Code Section 34194; and WHEREAS,City understands and believes that an action challenging the constitutionality of AB 1 X 26 and AB 1 X 27 will be filed on behalf of cities,counties and redevelopment agencies;and WHEREAS, while the City currently intends to make these community remittances, they ,. ..shall be made under protest and without prejudice to the City's right to recover such amounts and interest thereon, to the extent there is a final determination that AB 1X 26 and AB 1X 27 are unconstitutional; and WHEREAS, the City reserves the right, regardless of any community remittance made pursuant to this Ordinance, to challenge the legality of AB IX 26 and AB IX 27; and WHEREAS,to the extent a court of competent jurisdiction enjoins,restrains,or grants a stay on the effectiveness of the Alternative Voluntary Redevelopment Program's payment obligation of AB 1 X 26 and AB IX 27,the City shall not be obligated to make any community remittance for the duration of such injunction, restraint, or stay; and WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred. THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA,DOES ORDAIN AS FOLLOWS: Section 1. Recitals. The Recitals set forth above are true and correct and incorporated herein by reference. Section 2. Participation in the Alternative Voluntary Redevelopment Program. In accordance with Health and Safety Code Section 34193, and based on the Recitals set forth above, the City Council hereby determines that the City shall comply with the provisions of Part 1.9 of Division 24 of the Health and Safety Code, as enacted by AB 1X 27. Section 3. Pavment Under Protest. Except as set forth in Section 4, below, the City Council hereby determines that the City shall make the community remittances set forth in Health and Safety Code section 34194 et seq. Section 4. Effect of Stay or Determination of Invalidity. City shall not make any 2 r community remittance in the event a court of competent jurisdiction either grants a stay on the enforcement of AB 1X 26 and AB 1X 27 or determines that AB 1X 26 and AB 1X 27 are unconstitutional and therefore invalid, and all appeals therefrom are exhausted or unsuccessful, or time for filing an appeal therefrom has lapsed. Any community remittance shall be made under protest and without prejudice to the City's right to recover such amount and interest thereon in the event that there is a final determination that AB 1X 26 and AB IX 27 are unconstitutional. If there is a final determination that AB IX 26 and AB 1X 27 are invalid,this Ordinance shall be deemed to be null and void and of no further force or effect. Section 5. Implementation. The City Council hereby authorizes and directs the City Manager to take any action and execute any documents necessary to implement this Ordinance, including but not limited to notifying the Los Angeles County Auditor-Controller,the Controller of the State of California, and the California Department of Finance of the adoption of this Ordinance and the City's agreement to comply with the provisions of Part 1.9 of Division 24 of the Health and Safety Code, as set forth in AB 1X 27. Section 6. Additional Understandings and Intent. It is the understanding and intent of the City Council that, once the Agency is again authorized to enter into agreements under the CRL, the City will enter into an agreement with the Agency as authorized pursuant to Section 34194.2, whereby the Agency will transfer annual portions of its tax increment to the City in amounts not to exceed the annual community remittance payments to enable the City, directly or indirectly,to make the annual remittance payments. The City Council does not intend,by enactment of this Ordinance, to pledge any of its general fund revenues or assets to make the remittance payments. Section 7. w CEOA. The City Council finds, under Title 14 of the California Code of Regulations, Section 15378(b)(4), that this Ordinance is exempt from the requirements of the California Environmental Quality Act("CEQA")in that it is not a"project,"but instead consists of the creation and continuation of a governmental funding mechanism for potential future projects and programs, and does not commit funds to any specific project or program. The City Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of Los Angeles in accordance with CEQA Guidelines. Section 8. Custodian of Records. The documents and materials that constitute the record ofproceedings on which these findings are based are located at the City Clerk's office located at 213 E.Foothill Blvd.,Azusa,California,91702. The custodian for these records is the City Clerk. Section 9. Severability. 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 this 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 10. Certification; Publication. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published once within 15 days of adoption in a 3 newspaper of general circulation printed and published within the City of Azusa, and shall post a certified copy of this Ordinance,including the vote for and against the same,in the Office of the City Clerk in accordance with Government Code § 36933. Section 11. Effective Date. This Ordinance shall become effective thirty(30)days from its adoption. PASSED AND ADOPTED at the regular meeting of the City Council on this 6th day of September, 2011, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: Joseph R. Rocha, Mayor ATTEST: City Clerk 4 e ORDINANCE NO. AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, DETERMINING IT WILL COMPLY WITH THE VOLUNTARY ALTERNATIVE REDEVELOPMENT PROGRAM PURSUANT TO PART 1.9 OF DIVISION 24 OF THE CALIFORNIA HEALTH AND SAFETY CODE IN ORDER TO PERMIT THE CONTINUED EXISTENCE AND OPERATION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA WHEREAS, the City Council of the City of Azusa ("City') approved and adopted the Redevelopment Plan ("Redevelopment Plan") for the Merged Central Business District and West End Redevelopment Project Area covering certain properties within the City (the "Project Area"); and WHEREAS, the Redevelopment Agency of the City of Azusa ("Agency") is engaged in activities to execute and implement the Redevelopment Plan pursuant to the provisions of the California Community Redevelopment Law(Health and Safety Code§ 33000,et seMc.)("CRL");and WHEREAS, since adoption of the Redevelopment Plan, the Agency has undertaken redevelopment projects in the Project Area to eliminate blight, to improve public facilities and infrastructure, to renovate and construct affordable housing, and to enter into partnerships with private industries to create jobs and expand the local economy; and WHEREAS, over the next few years, the Agency hopes to implement a variety of redevelopment projects and programs to continue to eliminate and prevent blight, stimulate and expand the Project Area's economic growth, create and develop local job opportunities and alleviate deficiencies in public infrastructure, to name a few; and WHEREAS, as part of the 2011-2012 State budget bill, the California Legislature has recently enacted,and the Governor has signed,companion bills AB IX 26 and AB 1X 27,requiring that each redevelopment agency be dissolved unless the community that created it enacts an ordinance committing it to making certain payments; and WHEREAS, specifically, AB 1X 26 prohibits agencies from taking numerous actions, effective immediately and purportedly retroactively, and additionally provides that agencies are deemed to be dissolved as of October 1, 2011; and WHEREAS, AB 1X 27 provides that a community may participate in an "Alternative Voluntary Redevelopment Program," in order to enable a redevelopment agency within that community to remain in existence and carry out the provisions of the CRL;by enacting an ordinance agreeing to comply with Part 1.9 of Division 24 of the Health and Safety Code; and 1 45636.06001\6620088.1 s WHEREAS,the Alternative Voluntary Redevelopment Program requires that the community agree by ordinance to remit specified annual amounts to the county auditor-controller; and WHEREAS, under the threat of dissolution pursuant to AB 1X 26, and upon the contingencies and reservations set forth herein, the City shall make the Fiscal Year 2011-2012 community remittance, currently estimated to be Eight Hundred Thousand Dollars ($800,000), as well as the subsequent annual community remittances as set forth in the CRL; and WHEREAS, the City reserves the right to appeal the California Director of Finance's determination of the Fiscal Year 2011-2012 community remittance,as provided in Health and Safety Code Section 34194; and WHEREAS,City understands and believes that an action challenging the constitutionality of AB 1 X 26 and AB I X 27 will be filed on behalf of cities,counties and redevelopment agencies;and WHEREAS, while the City currently intends to make these community remittances, they shall be made under protest and without prejudice to the City's right to recover such amounts and interest thereon, to the extent there is a final determination that AB 1X 26 and AB 1X 27 are unconstitutional; and WHEREAS, the City reserves the right, regardless of any community remittance made pursuant to this Ordinance, to challenge the legality of AB 1X 26 and AB IX 27; and WHEREAS,to the extent a court of competent jurisdiction enjoins,restrains,or grants a stay on the effectiveness of the Alternative Voluntary Redevelopment Program's payment obligation of AB 1 X 26 and AB 1 X 27,the City shall not be obligated to make any community remittance for the duration of such injunction, restraint, or stay; and WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred. THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA,DOES ORDAIN AS FOLLOWS: Section 1. Recitals. The Recitals set forth above are true and correct and incorporated herein by reference. Section 2. Participation in the Alternative Voluntary Redevelopment Program. In accordance with Health and Safety Code Section 34193, and based on the Recitals set forth above, the City Council hereby determines that the City shall comply with the provisions of Part 1.9 of Division 24 of the Health and Safety Code, as enacted by AB 1 X 27. Section 3. Payment Under Protest. Except as set forth in Section 4, below, the City Council hereby determines that the City shall make the community remittances set forth in Health and Safety Code section 34194 et seq. 2 4563 6.0600 1 16620088.1 Section 4. Effect of Stay or Determination of Invalidity. City shall not make any community remittance in the event a court of competent jurisdiction either grants a stay on the enforcement of AB IX 26 and AB 1X 27 or determines that AB 1X 26 and AB 1X 27 are unconstitutional and therefore invalid. and all appeals therefrom are exhausted or unsuccessful, or time for filing an appeal therefrom has lapsed. Any community remittance shall be made under protest and without prejudice to the City's right to recover such amount and interest thereon in the event that there is a final determination that AB IX 26 and AB 1 X 27 are unconstitutional. If there is a final determination that AB 1 X 26 and AB 1 X 27 are invalid,this Ordinance shall be deemed to be null and void and of no further force or effect. Section 5. Implementation. The City Council hereby authorizes and directs the City Manager to take any action and execute any documents necessary to implement this Ordinance, including but not limited to notifying the Los Angeles County Auditor-Controller,the Controller of the State of California, and the California Department of Finance of the adoption of this Ordinance and the City's agreement to comply with the provisions of Part 1.9 of Division 24 of the Health and Safety Code, as set forth in AB 1X 27. Section 6. Additional Unde'rstandines and Intent. It is the understanding and intent of the City Council that, once the Agency is again authorized to enter into agreements under the CRL, the City will enter into an agreement with the Agency as authorized pursuant to Section 34194.2, whereby the Agency will transfer annual portions of its tax increment to the City in amounts not to exceed the annual community remittance payments to enable the City,directly or indirectly,to make the annual remittance payments. The City Council does not intend, by enactment of this Ordinance, to pledge any of its general fund revenues or assets to make the remittance payments. Section 7. CEOA. The City Council finds, under Title 14 of the California Code of Regulations, Section 15378(b)(4), that this Ordinance is exempt from the requirements of the California Environmental Quality Act("CEQA") in that it is not a"project,"but instead consists of the creation and continuation of a governmental funding mechanism for potential future projects and programs, and does not commit funds to any specific project or program. The City Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of Los Angeles in accordance with CEQA Guidelines. Section 8. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings are based are located at the City Clerk's office located at 213 E. Foothill Blvd.,Azusa, California,91702. The custodian for these records is the City Clerk. Section 9. Severability. 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 this 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. 3 45636.0600116620088.1 Section 10. Certification; Publication. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published once within 15 days of adoption in a newspaper of general circulation printed and published within the City of Azusa, and shall post a certified copy of this Ordinance,including the vote for and against the same,in the Office of the City Clerk in accordance with Government Code § 36933. Section 11. Findings. The adoption of this.Urgency Ordinance is necessary for the immediate protection of the public peace, health and safety. In accordance with California Government Code Section 36937 and in order to protect the public peace,health and safety,the City Council of the City of Azusa finds and determines as follows: ' (a) AB 1X 26 prohibits agencies from taking numerous actions, until the City Council adopts an ordinance agreeing to comply with Part 1.9 of Division 24 of the Health and Safety Code, including but not limited to incurring any new monetary or legal obligations or expanding any existing monetary or legal obligations,entering into agreements with any person for any purpose or amending or modifying any existing agreements and taking any action with respect to a redevelopment plan; (b) Prior to the enactment of an ordinance agreeing to comply with Part 1.9 of Division 24 of the Health and Safety Code,the Agency will be unable to continue efforts to eliminate and prevent blight(including the redevelopment of dilapidated and unsafe buildings and structures, the revitalization of areas with high crime and numerous code violations, and the renovation of vacant properties), stimulate and expand the Project Area's economic growth, create and develop local job opportunities and affordable housing, and alleviate deficiencies in public infrastructure; (c) Blighting conditions in the Project Area constitute substantial threats to public peace, health and safety, and are so prevalent they cannot be eliminated without Agency action, including but not limited to the use of Agency funds and authorization of redevelopment projects and programs; (d) During the current economic crisis, the Agency must have the ability to act and continue the efforts set forth in (b) above. The Agency must have all tools available in order to eliminate and prevent blighting conditions, including implementation of the Agency's economic development programs such as the Downtown North Project, the Atlantis Gardens Affordable Housing Project, Block 36, the Dalton Project, and the Northeast Comer Project. (e) The Agency is actively engaged in efforts to rehabilitate housing units, to provide assistance for property improvements and to provide safe and affordable housing. Adoption of this Urgency Ordinance will permit the Agency to continue these efforts immediately. Section 12. Effective Date. The City Council hereby declares, on the basis of the findings set forth above,that an emergency exists and that this Ordinance is necessary to preserve the public peace, health and safety. Accordingly, this Ordinance is adopted as an emergency ordinance and shall take effect and be in force immediately upon its adoption. 4 45636.06001\6620088.1 PASSED AND ADOPTED at a regular meeting of the City Council on this 18th day of July, 2011, by the following vote: AYES: NAYS: ABSENT: ABSTAIN: Joseph R Rocha, Mayor ATTEST: City Clerk 5 45636.06001\6620088.1 / ti��F�2G U N CITY OF AZUSA - MINUTES OF THE CITY COUNCIL REGULAR MEETING TUESDAY,JULY 5,2011—6:30 P.M. The City Council of the City of Azusa met in regular session at the above date and time in the Azusa .Auditorium located at 213 E.Foothill Boulevard.Azusa,CA 91702. CEREMONIAL Ceremonial Presentation of proclamations to City Manager Francis M. Delach and Chief of Police Robert Garcia in None Procs honor of their retirement from the City of Azusa was continued. Continued CLOSED SESSION Closed Session The City Council recessed to Closed Session at 7:45 p.m,to discuss the following: I. CONFERENCE WITH LABOR NEGOTIATOR(Gov.Code Sec 54957 6) Conference Agency Negotiators: Administrative Services Director-Chief Financial Officer Kreimeier and w/Labor City Manager Delach Negotiator Organizations APMA(Azusa Police Management Association)and CAPP(Civilian APMA Association of Police Personnel), 2. CONFERENCE WITH LABOR NEGOTIATOR(Gov.Code Sec 54957.6) Conf w/Labor Agency Negotiators: City Manager Delach Negotiator Exec Organization: Executive—Negotiation of Executive Benefits The City Council reconvened at 7:30 p.m. City Attorney Carvalho advised that there was no reportable Cncl rcvnd action taken in Closed Session. Closd Seas No Reports Mayor Rocha called the meeting to order. Call to Order Senior Airman Steven G.Izaguirre of the United States Air Force led in the pledge to the Flag. Flag Salute Invocation was given by Pastor Eddie Velasquez of Jesus Is Lord Church Invocation The City Council presented a Certificate of Appreciation to Senior Airman Steven G. Izaguirre of the United Cert S.Izaguin e States Air Force,for his services to our country. ROLL CALL Roll Call PRESENT: COUNCILMEMBERS: GONZALES,CARRILLO,HANKS,ROCHA ABSENT: COUNCILMEMBERS: MACIAS ALSO PRESENT: Also Present City Attorney Carvalho, City Manager Delach, Assistant City Manager Makshanoff. Police Chief Garcia, Director of Public Works Haes, Director of Economic and Community Development Christiansen.Director of Utilities Morrow, Assistant Library Director Strege,City Engineer Hassel, Senior Planner Cole, Assistant Director of Economic and Community Development McNamara, City Clerk Mendoza, Deputy City Clerk Toscana, PUBLIC PARTICIPATION Pub Part Ms. Barbara Dickerson addressed Council with thanks on behalf of Homework House. She presented B.Dickerson certificates of appreciation to Park and Recreation, Police Department and City Manager for their support. Comments She talked about the importance of a Healthy City. f Ms. Stephanie Mills addressed Council expressing her opinion regarding the City Manager position, the S.Mills proposed parking structure,and Veterans Park. Comments Ms. Adara Linda of H.O.P.E. Organizations, Helping find Opportunities in the Pursuit of Education, A.Linda addressed Council detailing their program and announced a fundraiser car wash to be held on July 16, 2011 Comments at Dalia's Pizza. Mr. Mike Lee addressed Council expressing his opinion regarding the Azusa Police Department, Grocery M.Lee Workers,union.fireworks,and U.S. Soldiers, Comments Mr. Joe Guarrera addressed Council expressing his opinion against the proposed parking structure on J. Guarrera Alameda and read several articles regarding inconsistencies in the project as well as the Gold Line in relation Comments to the structure. Mr. Dan Simpson addressed Council expressing his opposition to the continued problem of illegal fireworks D.Simpson in the City of Azusa and asked Council to address the issue. Comments Mr. Ralph Rodriguez addressed Council congratulating City Manager and Chief of Police on their R.Rodriguez retirement,spoke in favor of the parking structure and fireworks. Comments Mr. Jorge Rosales addressed Council inviting all to the Azusa Civic Center Park Committee meeting on J.Rosales Saturday, July 9'" from 10:00 a.m. to 1:00 p.m. at Veteran's Freedom Park in order to explain the negative Comments aspects of the parking structure. City Manager Delach responded that he would respond to Mr.Guarrera's comments at another time. City Mgr Com REPORTS,UPDATES COUNCIL BUSINESS AND ANNOUNCEMENTS-STAFF Rpts,Updates City Manager Delach announced that the Community Facilities District Bonds are going to market and will City Mgr bring a savings in property taxes to Mountain Cove residents in the amount of$189 per home. Comments NOTICE TO THE PUBLIC Notice to the Public NOTICE IS HEREBY GIVEN of City Board and Commission term of office expirations, ending Commission September 30,2011 for the following Boards and Commissions of the City of Azusa: Vacancies 2 Positions Architectural Barriers Commission 2 positions Human Relations Commission _ 2 positions Library Commission 1 position Park and Recreation Commission 1 position Personnel Board I position Planning Commission - Applications are available in the City Clerk's Office, 213 East Foothill Boulevard, City Library, 729 N. Dalton Avenue, Light & Water Department, 729 N. Azusa Avenue, Police Department, 725 N. Alameda, Azusa,and at: Nyww.ci.azusa.ca.us'for interested residents.Applications will be accepted through Thursday, August 25.2011. For further information,please call:(626)812-5271. Moved by Councilmember Gonzales, seconded by Councilmember Carrillo and unanimously` carried to Proc Korean approve request for proclamation in honor of the 58'" Anniversary of the Korean War Armistice, to be WarArmistice presented on Wednesday,July 27,2011 in front of City Hall, Mayor Pro-Tem Hanks noted that fireworks were down in his neighborhood and expressed congratulations K.Hanks to Frank and Judy Reed who recently celebrated their 50'wedding Anniversary. Comments Councilmember Gonzales reminded all about the cooling centers in Azusa and about the overnight Campout Gonzales on August 13'"at Northside Park where Pork Chop Tom will be performing. Comments _ Mayor Rocha stated the meeting will be adjourned in memory of Ida Garrett. He reminded all to look at the Rocha banner in front of City Hall to see all Azusa kids graduating and going on to further education. He Comments announced Be A Walker Program at 9:30 a.m. at Veteran's Park,Veterans Fundraiser Dance,Saturday July 16'",6 p.m.— l]p.m, at the VFW for$10,with proceeds to go towards the monuments in front of City Hall, the Car Wash at Dalia's Pizza for H.O.P.E..Azusa Cares from 10 a.m.— 12 noon at the Library, hosted by Assemblyman roger Hernandez, topics: dental care, hygiene and nutrition, and he thanked Bob Donnelson for locating two additional veterans of the Korean War whose names will be added to the monument. It was consensus of Councilmembers that the City Consent Calendar, Agency items and Ordinances and Items brought Special Resolutions be handled at this time. fwrd The CONSENT CALENDAR consisting of Items D-1 through D-5 was approved by motion of Consent Cal Councilmember Carrillo,seconded by Mayor Pro-Tem Hanks and unanimously"carried. D-1-5 appvd 07/05/11 PAGE TWO 4 ,i. I. The minutes of the special meeting of June 1, 2011 and the regular meeting of June 20, 2011. were Min appvd approved as written. Approved 2. HUMAN RESOURCES ACTION ITEMS. Human Res Separation: M. Bauer,Administrative Analyst effective 6/16/11. - Action Items 3. The City Treasurers Report as of May,31,2011 was received and filed. Treas Rpt 4. Authorization was given for the purchase of an aquatics themed child's slide at Slauson park Slide Slauson - pool in the amount of$18,654.00, Park 5. The following resolution was adopted and entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA ALLOWING CERTAIN Res. 11-058 CLAIMS AND DEMANDS AND SPECIFYING THE FUNDS OUT OF WHICH THE SAME ARE Warrants TO BE PAID. THE CITY COUNCIL RECESSED AND THE REDEVELOPMENT AGENCY CONVENED AT Cncl Recess 8:24 P.M. THE REDEVELOPMENT AGENCY ADJOURNED AND THE CITY COUNCIL CRA Adjourn RECONVENED AT 8:26 P.M. Cncl Rcnvd ORDINANCES/SPECIAL RESOLUTIONS Ord/Spec Resos Mayor Pro-Tem Hanks offered an Ordinance entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, AMENDING Ord. I1-010 SECTION 2-469 OF THE AZUSA MUNICIPAL CODE RELATING TO SEWER SERVICE FEES AND Sewer Service FEE COLLECTIONS, Fees Moved by Mayor Pro-Tem Hanks,seconded by Councilmember Carrillo to waive further reading and adopt. Ordinance passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES,CARRILLO,HANKS,ROCHA - NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: MACIAS SCHEDULED ITEMS Scheduled Items PUBLIC HEARING — AN APPLICATION FOR A MATERIAL RECOVERY FACILITY AND Public Hearing TRANSFER STATION TO BE LOCATED AT 1501 W GLADSTONE STREET APPLICANT WASTE MRF& MANAGEMENT. Transfer Station Waste Mngmt Director of Economic and Community Development Christiansen addressed the Hearing stating that the K.Christiansen application began in February of 2009 and is now complete; the Environmental Impact Report(EIR) was Comments circulated in August of 2010 went to the Planning Commission and is now before Council. Senior Planner Cole addressed the Hearing stating that the project is for a Material Recovery Facility and S.Cole Transfer Station; a facility that will receive and sort municipal solid waste, recyclables and green Senior Planner landscaping waste. The materials will be collected by Waste Management but is open to companies who Presentation would like to drop off materials for recycling. The project is located on Gladstone Street and Irwindale Avenue and is without a Household Hazardous Waste facility at this time, although included in the EIR. The project will enlarge existing entrance to the Cemex mine and existing landfill, construct a dedicated access road the MRF parallel to Gladstone Street with a scale house for incoming and outgoing trucks to be weighed and determine amount of materials processed and host fees that the City would generate. The main building will have large doors for the trucks to enter,which is a negative pressure building that will keep any odors, dust and debris inside, and the tipping Boor of the building will be divided into three separate areas, one for green waste, solid waste and materials recovered through the recycling process..There is a bale storage building which will hold sorted recycling materials to be stored for future transportation for sale,and a temporary outdoor storage area that will be covered and enclosed by a wall for temporary overflow allowed for only 48 hours. The main processing building is being called a LEED Certified building, Leadership Energy and Environmental Design, a certification based on the way the building is constructed. materials that are being used in the building,the way the building processes and uses energy and air,and that it is a sustainable building. The General Plan Amendment and Zone Change is to change a portion of the project site to Industrial so that it will be consistent with the rest of the project. The Use Permit is to allow the operation of a facility, the Design Review is to allow the construction of the facility, the Zoning Code amendment and use permit is to allow operation 24 hours a day, a Variance is to allow a six foot tall perimeter wall around the facility,another variance is to allow a two fool increase in the building height,and another Variance to allow a deviation from some of the operational standards in the Development for recycling facilities. There is a development agreement which will memorize benefits for the City and development rights for Waste Management. - 07/05/11 PAGE THREE r Mr.Eddie Torres of RVF Consulting presented the Environmental Impact Report(EIR)Analysis and CEQA E.Torres It process. He talked about the impact categories studied as follows: land use development planning, RVF Consulting aesthetics light and glare,traffic and circulation,air quality,green house gas emissions,noise,public service Presentation and utilities, cultural resources,hazards and hazardous materials, hydrology and water quality,geology and EIR Analysis soils, growth inducement, alternate impacts and significant and un-avoidable impacts; he detailed the impacts. Mr. Mike Hammer of Waste Management,Applicant, detailed the project, the main functions,the Material M.Hammer Recovery Facility and Transfer Station,the need for the facility, location and benefits,i.e.host fees,meeting Waste legislative mandates,and managing waste. Management The Mayor declared the Public Hearing open. The City Clerk read the affidavit of proof of publication of Hrg Open notice of said Hearing published in the San Gabriel Valley on June 24,2011. The City Council recessed at 9:09 p.m.and reconvened at 9:20 p.m. Recess/Rec The following persons spokeinfavor of the Material Recovery Facility: Gilbert Medina, Jorge Rosales, Testimony Mike Lee, Sal Martinez,James Stevenson,Jeri Vogel, Wayne Blake,Bruce Knoles,Maricela Cueva,David In Favor Hooper,Stephanie Mills,and Ralph Rodriguez. The following persons spoke against the Material Recover Facility: Lisa Bailey, Charles Spence, Victor Testimony Centeno,Eduardo None,Milagros Serrano,and Jim Hickey. Against Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Gonzales and unanimously' carried to Hrg Closed close the Public Hearing. Lengthy discussion was held between Councilmembers, Staff and Consultants regarding the following: Lengthy ' traffic, public safety, sidewalks, possible outreach to educate children on the Materials Recovery Facility, discussion - local bidders, preference to hiring Azusa residents, traffic counts taken within the last 18 months, trips in Council, comparison to homes, traffic time trips, alternative routes and route to freeway, shipping mostly during the Staff and night, attempts to meet with Irwindale, 69 new jobs and preference to local Azusans if they are qualified, Consultants storage of outside bales possibly longer than 48 hours, street repairs, addition of. "any odor complaints be copied to the Azusa Engineer", first Flush storm water capture, mitigation monitoring program word changes, day labor movement, air quality, alternative fuel transition,triggering distances to nearest schools, impact fees,streets,five year pavement management plan,and bale storage. Final changes included: Mitigation Monitoring and Report Program Cover Page which notes table lists Final Changes mitigation measurers that, change word "may" to "shall", added to AQ-4 "Any odor complaints received shall be sent to the City of Azusa City Engineer",Conditions of Approval#24 added"The baled,recyclable material must be date-tagged and may only be stored in the designated outdoor storage area for no longer then 96 hours", and 02 added"the applicant acknowledges and accepts that these Conditions of Approval are intended to avoid potential nuisance conditions from arising as a result of applicant's operations and therefore, applicant accepts that violations may be sited in accordance with the City's nuisance regulations and the City's fines and penalties ordinance. Mayor Pro-Tem Hanks offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA CERTIFYING THE FINAL Res, 11-C49 ENVIRONMENTAL IMPACT REPORT (SCH 42010081010), ADOPTING ENVIRONMENTAL Crtfyng Final FINDING S PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, AND EIR,Adopt ADOPTING A MITIGATION MONITORING AND REPORTING PROGRAM FOR THE WASTE Mitigation MANAGEMENT MATERIAL RECOVERY FACILITY PROJECT. Monitoring &Stmt of Moved by Mayor Pro-Tem Hanks,seconded by Councilmember Carrillo to waive further reading and adopt. Overriding Resolution passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES,CARRILLO,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: MACIAS Moved by Councilmember Gonzales, seconded by Mayor Pro-Tem Hanks and unanimously" carried to EIR Mitigation adopt the Environmental Impact Report Mitigation Monitoring and Report Program. Monitoring Rpt Moved by Mayor Pro-Tem Hanks,seconded by Councilmember Carrillo and unanimously carried to adopt EIR Findings of the Environmental Impact Report Findings of Fact and Statement of Overriding Considerations. Fact&Stmt Overriding Mayor Pro-Tem Hanks offered a Resolution entitled: Considerations 07/05/11 PAGE FOUR i ,7. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING GENERAL PLAN Res, I I-050 AMENDMENT GPA 2010-01, TO CHANGE THE GENERAL PLAN DESIGNATION OF A PORTION Appvg GPA OF LAND, LOCATED AT 1501 W. GLADSTONE STREET, AZUSA CALIFORNIA, FROM 2010-01 Rec/If RECREATION/LANDFILL MIXED USE TO INDUSTRIAL To Industrial 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.HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: MACIAS Councilmember Gonzales offered an Ordinance entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING ZONE CHANGE 1"Rdg Ord Z 2009-01,TO CHANGE THE ZONING MAP DESIGNATION OF A PORTION OF LAND FROM DWL Z2009-01 (DISTRICT WEST END LIGHT INDUSTRIAL)TO DW(DISTRICT WEST END INDUSTRIAL) OWL to DW Moved by Councilmember Gonzales, seconded by Mayor Pro-Tem Hanks and unanimously carried to MRF waive further reading and introduce the proposed ordinance. Councilmember Carrillo offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING USE PERMIT UP Res. 11-051 2009-01, TO ALLOW THE OPERATION OF A RECYCLING FACILITY-PROCESSING FACILITY UP 2009-01 (MATERIAL RECOVERY FACILITY/TRANSFER STATION)AT 1501 W.GLADSTONE STREET MRF -Transfer Station Moved by Councilmember Carrillo, seconded by Councilmember Gonzales to waive further reading and adopt. Resolution was passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES,CARRILLO,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: MACIAS Mayor Pro-Tem Hanks offered an Ordinance entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING ZONING CODE 1"Rdg Ord AMENDMENT ZCA 230,ALLOWING OPERATING HOURS BETWEEN 9:00 P.M. AND 7:00 A.M. IN ZCA 230 THE DW AND OWL ZONES WITH A USE PERMIT. Operating Hours Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Gonzales and unanimously' carried to waive further reading and introduce the proposed ordinance. Mayor Pro-Tem Hanks offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING USE PERMIT UP Res. I1-052 2010-04, TO ALLOW A REDUCTION IN THE REQUIRED NUMBER OF PARKING SPACES FOR UP 2010-04 THE MATERIAL RECOVERY FACILITY AND TRANSFER STATION LOCATED AT 1501 W. Rdcd Pkg GLADSTONE STREET - Spcs MRF Moved by Mayor Pro-Tem Hanks,seconded by Councilmember Carrillo to waive further reading and adopt. Resolution passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES.CARRILLO,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: MACIAS Mayor Pro-Tem Hanks offered a Resolution entitled: A RESOLUTION OFTHECITY COUNCIL OF THE CITY OF AZUSA APPROVING USE PERMIT UP Res. 11-053 2010-05, TO ALLOW 24 HOUR OPERATION OF THE MATERIAL RECOVERY UP 2010-05 FACILITY/TRANSFER STATION AT 1501 W.GLADSTONE STREET 24 hours Moved by Mayor Pro-Tem Hanks,seconded by Councilmember Carrillo to waive further reading and adapt. Operation MRF Resolution passed and adopted by the following vote of the Council: 07/05/11 PAGE FIVE A AYES: COUNCILMEMBERS: GONZALES,CARRILLO,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: MACIAS Mayor Pro-Tem offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING VARIANCE V Res. 11-054 2010-02 TO ALLOW A SIX FOOT (6') PERIMETER FENCE IN THE FRONT SETBACK AT 1501 W. V 2010-02 GLADSTONE STREET Allow 6' Fence Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Carrillo to waive further reading and adopt. Resolution passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES,CARRILLO,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: MACIAS Mayor Pro-Tem Hanks offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING VARIANCE V Res. I 1-055 .2010-03 TO ALLOW A TWO FOOT(2') INCREASE IN THE ALLOWABLE BUILDING HEIGHT OF V 2010-03 THE MATERIAL RECOVERY FACILITY AND "TRANSFER STATION LOCATED AT 1501 W. Allow GLADSTONE STREET 2' inc Bldg Height Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Carrillo to waive further reading and adopt. Resolution passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES,CARRILLO,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: MACIAS Mayor Pro-Tem Hanks offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING VARIANCE V Res. 11-056 2010-04, TO MODIFY OPERATIONAL STANDARDS FOR A RECYCLING FACILITY — V2010-04 PROCESSING FACILITY FOR THE WASTE MANAGEMENT MATERIAL RECOVERY FACILITY Modify Stndrds AND TRANSFER STATION LOCATED AT1501W.GLADSTONE ST Moved by Mayor Pro-Tem Hanks,seconded by Councilmember Camillo to waive further reading and adopt. Resolution passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES,CARRILLO,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: MACIAS Mayor Pro-Tem Hanks offered a Resolution entitled: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING DESIGN Res. 11-057 REVIEW DR 2009-01 FOR THE CONSTRUCTION OF A MATERIAL RECOVERY FACILITY AND DR 2009-01 TRANSFER STATION,LOCATED AT 1501 W.GLADSTONE STREET Approving Design Review Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Carrillo to waive further reading and adopt. Resolution passed and adopted by the following vote of the Council: AYES: COUNCILMEMBERS: GONZALES,CARRILLO,HANKS,ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: MACIAS Councilmember Gonzales offered a Resolution entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING A 1"Rdg Ord DEVELOPMENT AGREEMENT FOR THE CONSTRUCTION AND OPERATION OF A MATERIAL Approving RECOVERY FACILITY AND TRANSFER STATION,LOCATED AT 1501 W.GLADSTONE STREET Development Agreement Moved by Councilmember Gonzales, seconded by Councilmember Carrillo and unanimously* carried to MRF waive further reading and introduce the proposed ordinance. 07/05/11 PAGE SIX n f It was consensus of Councilmembers to adjourn in memory of Mrs.Ida Garrett. Adjourn in Memory of I.Garrett TIME OF ADJOURNMENT: 11:45 P.M. CITY CLERK Indicates Macias absent. NEXT RESOLUTION NO.2011-059. NEXT ORDINANCE NO.2011-011. 07/05/11 PAGE SEVEN Page 1 of 1 L Juana Hernandez - Re: Request for Information - Azusa From: Juana Hernandez To: Schmidt, Chad Date: 7/7/20112:49 PM Subject: Re: Request for Information - Azusa Mr. Schmidt, I submitted your request to the Business License Division who will be assisting me in getting this information together for you. If they feel that they need additional information, they might contact you directly. >>> Chad Schmidt <chadschmidt85@yahoo.com> 7/7/2011.11:38 AM >>> Juana, My request the following information on all apartment buildings in the city of Azusa that have greater than 100 units: Name of building Address Number of units Phone number to manager/building If you are able to fulfill my request by sending the information through email, I would appreciate it. If you have any questions, please don't hesitate to contact me. Chad Schmidt 323.432.6246 file://CADocuments and Settings\azusauser\Local Settings\Temp\XPgrpwise... 7/14/2011 U � i c't<iroa�`T: CITY OF AZUSA MINUTES OF THE CITY COUNCIL SPECIAL MEETING MONDAY,JUNE 13,2011—6:05 P.M. The CityCouncil of the City of Azusa met in special session at the above date and time in the Azusa Light and Water Conference Room located at 729 N.Azusa Avenue,Azusa. Mayor Rocha called the meeting to order. Call to Order Mayor Pro-Tem Keith Hanks joined the meeting via Teleconference Call from the following location: Keith Hanks Via - -Coronado Island : 2000 SecondStreet, - Phone:a- Teleconference }Marriott Resort& - Coronado,California 921.18 USA " 679-435- Spa Room:Room Nb.270 3000 All votes were taken via a voice vote of the City Council. The meeting was conducted pursuant to California Government Code Section 54953. ROLL CALL Roll Call PRESENT: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA ABSENT: COUNCILMEMBERS: NONE ALSO PRESENT: Also Present City Clerk Mendoza and Deputy City Clerk Toscano. Mayor Rocha announced and followed procedures required by the Brown Act to insure teleconference location was identified and posted,and that audio equipment worked properly. PUBLIC PARTICIPATION Pub Part None. None. AGENDA ITEM Agenda Item Interviews were held for applicants to fill the existing vacancy on the City Planning Commission. Interviews Moved by Councilmember Carrillo,seconded by Mayor Pro-Tem Hanks and carried to appoint Robert Appoint R. Donnelson to the Planning Commission. Councilmember Macias abstained. Donnelson Final appointment will be made at the meeting of June 20,2011 via resolution. Final Appt 620/11 Mtg. Moved by Councilmember Carrillo,seconded by Councilmember Gonzales and unanimously carried to Adjourn adjourn. TIME ADJOURNMENT: 7:08 P.M. CITY CLERK NEXT RESOLUTION NO. 11-C41. - 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 MANAGERrd'-- DATE: JULY 18, 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 July 12, 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 DATE BASE MO SALARY UTL Micah Moore Apprentice Line Merit Increase 5204/5 Mechanic 06/26/2011 $6,632.43 UTL Leopoldo Water Production Merit Inc/Reg Appt 5185 Maldonado Operator II 07/26/2011 $4,647.60 UTL Ramon Office Specialist II Merit Increase 4143/4 Lomin kit 06/03/2011 $3,484.10 PD Amelia Magana Police Dispatcher Merit Increase 9166/5 07/07/2011 $4,754.78 B. PROMOTION—The following promotion(s)have been requested by the department head pursuant to the Rules of the Civil Service System. DEPARTMENT, NAME' CLASSIFICATION EFFECTIVE—RANGE/STEP. FROMIT6 DATE y BASE MO. SALARY PD Randy Schmidt From: Police Corporal 07/01/2011 6501/4 To: Police Sergeant $7,779.92 i C. NEW APPOINTMENT: The following appointments have been requested by department heads ursuant to the Rules of The Civil Service System. DEPARTMENT NAME CLASSIFICATION EFFECTIVE RANGE/STEP DATE BASE MO. SALARY UTL Daryl Mosher Engineering Associate Pending 4222/1 Physical & $6,416.84 Background PD David Police Officer Pending 6101/5 Fawcett Physical & $6,691.99 Background FISCAL IMPACT There is no fiscal impact, as positions listed are funded in approved department budgets. i I r f .M '9•' A - -a CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT B. GARCIA, CHIEF OF POLICE VIA: F.M. DELACH, CITY MANAGERrop, DATE: JULY 18, 2011 SUBJECT: LEASE OF FIVE LONG TERM CAPABILITY HOSTING (LATCH) MODULES FROM AARDVARK TACTICAL, INC. ATHENA PROGRAM RECOMMENDATIONS It is recommended that the City Council approve the leasing of five LATCH modules from Aardvark Tactical, Inc. ATHENA program in an amount not to exceed $40,204.76 over the course of the attached five year services agreement. It is further recommended that the City Council approve this lease based on a sole-source manufacturer as authorized by AMC Section 2-523(d) when there is no competitive market. This type of lease agreement provides for a fixed annual cost to host the modules at the Police Department and pay for what is consumed, broken or destroyed during their deployment. BACKGROUND The Police Department has a regular and on-going need to have an inventory of various munitions and equipment in order to immediately respond to a wide variety of crises. Traditionally, the Department purchases chemical and less lethal munitions, but ensuring said equipment is current and ready for use at all times can be problematic (e.g., expiration dates, replacement, technological advances and storage). Moreover, some of the Department crowd control personal protective equipment (PPE) is out-dated, and wildfire response PPE is non- existent. Rather than expend nearly $20,000 to purchase the necessary equipment to satisfy Departmental needs for barricaded suspects, crowd control situations and wildfire response, staff recommends leasing the following five LATCH modules: 1) Barricaded Suspect — Chemical Agent 2) Crowd I a Control — Less Lethal Munitions 3) Crowd Control — Chemical Agent 4) Crowd Control — PPE and 5) Wildfire Response — PPE. Since the modules are updated and maintained by ATHENA representatives, they will never expire, never have broken or damaged equipment and never tie up Department personnel for maintenance upkeep. Another advantage of participating in this lease program is that the Police Department will have access to a regional cache of modules through Aardvark Tactical, Inc. if/when we exhaust or reasonably expect to exhaust the modules maintained. The annual lease costs for the modules are listed in Schedule A of the attached master services agreement which was approved as to form by the City Attorney. The annual lease cost starts at $7,572.75 in the first year and graduates to $8,523.20 in the fifth and final year of the contract. Over the course of the five year contract, the total lease cost for the five modules is $40,204.76 with just over 23% being funded by General Fund and the balance being paid for with Asset Seizure Funds. FISCAL IMPACT Adequate funds for the first year of the referenced lease are currently budgeted in F/Y 2011/2012. General Fund account #10-20-310-000-6850 will pay for the wildfire response module and the remaining four modules will be funded from the Asset Seizure Fund, Account # 28-20-310-041-6850. Prepared by: Paul Dennis, Lieutenant Sam Gonzalez, Captain I SII �b� r Sample Barricaded Suspect Chemical Agent Module 2 AARDVARK TACTICAL, INC. ATHENA PROGRAM MASTER SERVICES AGREEMENT This Master Services Agreement (this "Agreement') is entered into effective as of_ 20 (the "Effective Date") by and between Aardvark Tactical, loc., a California corporation ("ATI") and a public agency (the "Agency'). ATI and the Agency are sometimes referred to as the"Parties". Capitalized terms will have the meanings set forth herein. A. ATI specializes in providing equipment, training and logistics support services to local, state and federal government agencies. B. The Agency desires to engage ATI to provide certain services (the "Services") as described on Schedule A (Hosted Modulesl to the Agency pursuant to the terms and conditions set forth herein. In consideration of the mutual promises made by the Parties and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the Parties agree as follows: 1. ENGAGEMENT OF ATI ATI agrees to perform the Services for the Agency and the Agency agrees to purchase and pay ATI for the Services, each on the terms and conditions set forth in this Agreement, as may be supplemented or amended from time to time. 2. TERM AND TERMINATION (a) Term. The term of this Agreement will begin on the Effective Date and will continue for the number of years following the Effective Date as checked below: ❑ 5 Year Term ❑ 10 Year Term ❑ Year Term (b) Termination Upon Notice, Either Party may terminate this Agreement at any time upon thirty (30) days prior written notice to the other Party. (c) Agency Obligations. In the event of a termination by the Agency prior to the end of the Term (and any extensions thereof) for any reason, the Agency will promptly (i) pay all unpaid Supplemental Fees, (ii) pay the then current replacement cost for all Modules and any related equipment leased by the Agency, less 50% of the aggregate Base Fees previously paid by the Agency to ATI. Such replacement cost will be as set forth on Schedule C (Athena Pricelist), which schedule shall be updated by ATI on an annual basis. Upon receipt of such payments, ATI will transfer ownership of the Modules to the Agency. In connection with any termination, the Agency will comply with all applicable local, state and federal laws and ATI procedures regarding the transfer and handling of the Modules and related equipment. 3. PAYMENT The fees to be paid to ATI for the Services are set forth on Schedule A (collectively, the "Fees'), The Base Fee is due in full upon execution of this Agreement and will be deemed earned and nonrefundable upon delivery of the Modules to the Agency. ATI will invoice the Agency for any consumable equipment replacement costs (the "Supplemental Fees") that are incurred by the Agency during the Term of this Agreement in accordance with Schedule C. The Agency will make full payment to ATI, at the address specified on the invoice, no later than thirty (30) days from the date of such invoice. All invoices submitted by ATI will contain an itemized accounting for all Supplemental Fees to be paid and all costs and expenses to be reimbursed by the Agency to ATI. If the Agency has not made payment in full by the expiration of such thirty (30) day period, ATI may elect to: (i) charge a late payment fee on such unpaid amount equal to 1.5% per month of such unpaid amount; and/or (ii) suspend any further Services hereunder until such invoice is paid in full. LAI:1197415.6 ] f Any tax (including any sales or use tax, but excluding ATI's income or franchise taxes), however denominated and measured, imposed upon ATI with respect to the Services will be paid by the Agency. 4. SERVICES (a) Basic Service. ATI will deliver the number and type of Modules indicated on Schedule A promptly upon execution of this Agreement. The Agency will notify ATI no later than one business day following the occurrence of an event that necessitates the use by the Agency of the Modules. ATI will inventory and restock the Modules promptly following such notification. ATI will replace and repair equipment contained in the Modules as deemed necessary by ATI as follows: (i) Durable equipment will be replaced at no cost to the Agency if ATI deems the equipment has become obsolete. (ii) Consumable equipment will be replaced upon consumption and the Agency will be charged the appropriate Supplemental Fee in accordance with Schedule C. (iii) Lost, destroyed or damaged equipment will be replaced or repaired in ATI's sole discretion at the Agency's cost. Replacement cost will be at the Supplemental Fee provided in Schedule C and repair costs will be determined in ATI's sole discretion. (b) Replacement and Repair. All equipment contained in the Modules, including any replacement or repaired equipment, must be obtained from ATI. To facilitate the replacement and repair of equipment, the Agency will, prior to delivery of the Modules, provide ATI with an open purchase order in the amount of _% of the Base Fee (the "Open Purchase Order"). ATI is authorized to charge and receive payment from the Agency under the Open Purchase Order for any equipment that is repaired or replaced and, in the event that the Open Purchase Order is exhausted or terminated for any reason, the Agency agrees to replace it with a new open purchase order for not less than the same amount. The Agency hereby agrees that the terms of this Agreement supersede and replace the terms of any Open purchase Order. In the event of any conflict between an Open Purchase Order and this Agreement, this Agreement will govern. (c) Regional Cache. Upon request by the Agency, ATI will use its commercially reasonable efforts to make its regional cache of Modules (the "Regional Cache") available to the Agency so long as the Agency (i) is in compliance with the terms of this Agreement, (ii) has exhausted, or reasonably expects to exhaust, the Modules maintained on its premises and (iii) has exhausted, or reasonably expects to exhaust, the resources available to the Agency from its mutual aid partners. To the extent that the Agency is given access to the Regional Cache, the Agency agrees to pay ATI for the use of such Modules at the applicable rates under the STAR Program, and to comply with all other terms of the STAR Program. The Agency acknowledges and agrees that it is the Agency's responsibility to maintain access to sufficient resources to enable the Agency to respond to emergency situations, including by providing its own equipment, hosting Athena Modules on the Agency's premises, and participating in mutual aid programs with other government agencies. ATI DOES NOT GUARANTEE THAT THE REGIONAL CACHE WILL BE AVAILABLE TO THE AGENCY, OR THAT THE RESOURCES CONTAINED IN THE REGIONAL CACHE WILL BE SUFFICIENT TO MEET THE AGENCY'S NEEDS UNDER ANY CIRCUMSTANCES. (d) Ownership: Title. The Parties acknowledge and agree that this is a contract for services and ATI retains ownership and title to the Modules, including all of the equipment contained in the Modules, all equipment delivered in connection with the Services and all other personal property related thereto. 5. SHORT TERM ASSET RENTAL PROGRAM (STAR) ❑ The Agency hereby opts out of the STAR Program. ❑ The Agency hereby opts in the STAR Program and agrees to the terms and conditions sets forth in this Section 5. LAI 1197415.6 2 Ir To the extent that the Agency requires additional resources beyond those contained in the Modules hosted by the Agency under this Agreement, the Agency may rent additional equipment ("Equipment") under ATI's Short Term Asset Rental (STAR) Program. The Agency acknowledges and agrees that the STAR Program is intended to provide supplemental equipment to cover short- term needs, and is not intended to be a long term source of equipment for the Agency. The Agency further agrees to comply with all terms of the STAR Program as provided in this Section 5. (a) Rental Period. The rental period for each article of Equipment will be from the date that such article of Equipment is delivered to the Agency until the later of (i) the expiration of the relevant rental period set forth on the applicable STAR invoice and (ii) the date such article of Equipment is returned to ATI (the"Rental Period"). (b) Pricing and Payment. The fees to be paid to ATI for the use of the Equipment during the Rental Period are set forth on Schedule C. ATI will invoice the Agency for the equipment upon delivery to the Agency, and all rental fees provided in such invoices are due in full and will be deemed earned and nonrefundable upon delivery of each article of Equipment to the Agency. ATI will invoice the Agency periodically for any Equipment held by the Agency for any period longer than contemplated under the original invoice. The Agency will make full payment to ATI, at the address specified on the invoice, no later than thirty (30) days from the date of such invoice. All invoices submitted by ATI will contain an itemized accounting for all rental fees to be paid and all costs and expenses to be reimbursed by the Agency to ATI. If the Agency has not made payment in full by the expiration of such thirty (30) day period, ATI may elect_to: (i) charge a late payment fee on such unpaid amount equal to _% per month of such unpaid amount; and/or (ii) suspend any further services hereunder until such invoice is paid in full. Any tax (including any sales or use tax, but excluding ATI's income or franchise taxes), however denominated and measured, imposed upon ATI with respect to the Services will be paid by the Agency. (c) Open Purchase Order. The Agency will immediately provide ATI with an open purchase order in the amount of $ (the "STAR Open Purchase Order"). ATI is authorized to charge and receive payment from the Agency under the STAR Open Purchase Order for any equipment that ordered, repaired or replaced and, in the event that the STAR Open Purchase Order is exhausted or terminated for any reason, the Agency agrees to replace it with a new open purchase order for not less than the same amount. The Agency hereby agrees that the terms of this Agreement supersede and replace the terms of any STAR Open Purchase Order. In the event of any conflict between a STAR Open Purchase Order and this Agreement, this Agreement will govern. (d) Replacement and Repair. Lost, destroyed or damaged articles of Equipment will be replaced or repaired in ATI's sole discretion at the Agency's cost. Such replacement cost will be as set forth on Schedule C, which schedule shall be updated by ATI on an annual basis. ATI is authorized to charge and receive payment from the Agency under the STAR Open Purchase Order for any article of equipment that is repaired or replaced and, in the event that the STAR Open Purchase Order is exhausted or terminated for any reason, the Agency agrees to replace it with a new open purchase order. (e) Ownership and Title. The Parties acknowledge and agree that this is a contract for services and ATI retains ownership and title to the articles of Equipment. (f) Access and Inspection. The Agency will provide ATI and its representatives with complete access to the articles of Equipment located on the Agency's premises to conduct inspection activities; provided, however,that any such activities will be conducted in such a manner as not to interfere unreasonably with the Agency's operations. The Agency agrees to cooperate and assist with ATI's inspection activities. 6. LOGISTICAL EMERGENCY ACQUISITION PROGRAM (LEAP) ❑ The Agency hereby opts out of the LEAP Program. ❑ The Agency hereby opts in the LEAP Program and agrees to the terms and conditions sets forth in this Section 6. LAI:1197415.6 3 r Upon request by the Agency, in the event of a declared state of emergency,.ATI will use its commercially reasonable efforts to obtain other equipment on,the Agency's behalf. The Agency agrees to purchase such equipment from ATI at ATI's cost plus 10%. The Agency further agrees that it will immediately issue a new Open Purchase Order for such purchases to cover all payments owed to ATI for such services. ATI is authorized to charge and receive payment from the Agency under such Open Purchase Order for any equipment that delivered by ATI and, in the event that the Open Purchase Order is exhausted or terminated for any reason, the Agency agrees to replace it with a new open purchase order for not less than the same amount. The Agency hereby agrees that the terms of this Agreement supersede and replace the terms of any such Open Purchase Order. In the event of any conflict between such Open Purchase Order and this Agreement, this Agreement will govern. ATI will invoice the Agency for any costs or fees that are incurred during the Term of this Agreement in accordance with this Section 6. The Agency will make full payment to ATI, at the address specified on the invoice, no later than thirty (30) days from the date of such invoice. All invoices submitted by ATI will contain an itemized accounting for all costs and fees to be paid by the Agency to ATI. If the.Agency has not made payment in full by the expiration of such thirty (30) day period, ATI may elect to: (i) charge a late payment fee on such unpaid amount equal to 1.5% per month of such unpaid amount; and/or (ii) suspend any further Services hereunder until such invoice is paid in full. Any tax (other than ATI's income or franchise taxes), however denominated and measured, imposed upon the Services will be paid by the Agency. For purposes of this Section 6, the persons listed on Schedule B (Designated Persons), attached hereto, are authorized to declare an emergency on behalf of the Agency and have the authority to bind the Agency for purchases hereunder up to the maximum amount of the Open Purchase Order issued in accordance with this Section 6. 7. ACCESS AND INSPECTION The Agency will provide ATI and its representatives with complete access to the Modules located on the Agency's premises to conduct inventory and inspection activities; provided, however, that any such activities will be conducted in such a manner as not to interfere unreasonably with the Agency's operations. The Agency agrees to cooperate and assist with ATI's inventory and inspection activities. 8. COMPLIANCE WITH LAWS The Parties agree to comply in all material respects with all applicable laws and regulations, including the laws and regulations related to the purchase, sale, storage, use and disposal of firearms, ammunition and hazardous materials and the training of individuals participating in the transportation, storage, use or maintenance of any such materials. The Agency is solely responsible for compliance with such laws and regulations by its employees and agents or in any way related to the Modules and equipment stored or used on its premises or by its employees or provided to the Agency or its employees or agents by ATI. 9. REPRESENTATIONS AND WARRANTIES (a) General. Each of ATI and the Agency represents and warrants on its own behalf that (i) it has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder and (ii) this Agreement has been duly and validly authorized by all necessary action on its part and has been duly executed and delivered by it and constitutes its legal, valid and binding agreement, enforceable in accordance with its terms. (b) Agency. The Agency represents and warrants that it has the personnel, resources, expertise, knowledge, and experience necessary to .ensure compliance with all laws and regulations, including but not limited to laws and regulations related to the purchase, sale, storage, use and disposal of firearms, ammunition, and hazardous materials. The Agency represents and warrants that all employees and agents given access to equipment made available by ATI or given any responsibility for the maintenance, storage, transportation, or distribution of such equipment will be trained in the use, maintenance, storage, transportation, and distribution of such equipment with such knowledge, skills and abilities necessary to achieve and maintain proficiency consistent with applicable professional standards and local, state and federal law. The Agency further agrees to monitor and supervise its agents and employees and maintain appropriate and necessary training LA 1:1197415.6 4 I and monitoring during the entire term of this Agreement. The Agency also specifically represents and warrants that it has complied with all requirements under applicable local, state and federal law for entry into this Agreement and all the terms herein: (c) Authorized Persons. The Agency represents and warrants that the persons listed on Schedule B are duly authorized representatives of the Agency with the power and authority to bind the Agency in connection with the entry into and any subsequent modification, extension, termination, or amendment of this Agreement, and with respect to all matters relating to the Modules and any related `equipment. ATI may rely upon this representation for all matters relating to this Agreement and the Services, including replacement and repair of equipment under the Open Purchase Order, accepting new purchase orders or entering into other commercial arrangements in connection with this Agreement or otherwise without any further inquiry. These representations and warranties are in addition to those contained in Section 8 above. 10. FORCE MAJEURE If ATI is delayed in making any delivery in whole or in part, by reason of Force Majeure, such delay will be excused during the continuance of and to the extent of such Force Majeure; provided that if, as a consequence of any such Force Majeure, the total demands for ATI's equipment or services cannot be supplied by ATI, ATI may, at its option and sole discretion, allocate its available supply among the Agency and its other customers on such basis as ATI may deem fair and practicable, without liability for any failure to perform this Agreement.' "Force Majeure" means any of the following events or conditions: acts of state, governmental or regulatory action, orders, legislation, regulations, restrictions, priorities or rationing, riots, disturbance, strikes, lockouts, slowdowns, prolonged shortage of supplies, interruption of transportation, embargo (inability to procure or shortage of supply materials, equipment or production facilities), delay of subcontractors or vendors, acts of God, acts of war, terrorism, fire, earthquake, flood, hurricane, typhoon, explosion and accident or similar events. 11. DISCLAIMER OF WARRANTIES EXCEPT AS SET FORTH IN SECTION 7 ABOVE, ATI DOES NOT MAKE AND HEREBY DISCLAIMS ALL WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT AND SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, ANY COURSE OF DEALING, USAGE OF TRADE, NON-INFRINGEMENT, TITLE OR ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. 12. RISK OF LOSS: ASSUMPTION OF RISK. Notwithstanding anything herein to the contrary, the Parties agree as follows: (a) The risk of loss, theft, destruction, alteration, or misuse with respect to any Module or equipment will be borne solely and exclusively by the Agency upon delivery of such Module or equipment to the Agency (b) The Agency solely and exclusively assumes all liability and responsibility for the condition, use, security and storage of the Modules and the equipment. (c) The Agency acknowledges that certain equipment made available by ATI is inherently dangerous and the use of such equipment could result in serious bodily injury or death by the user or other persons and the destruction of private or public property and the Agency assumes all liability related to such use or any misuse whether the equipment is used for its intended purpose or not. The risk of loss and assumption of risks set forth herein apply in all circumstances, including but not limited to contractual, tort or other disputes between the Parties and contractual, tort, or other disputes between ATI, the Agency, or the Parties on the one hand and persons or entities on the other hand. LAI:1197415,6 5 I These representations and warranties are in addition to those contained in Section 8 above. 13. INDEMNIFICATION; RELEASE (a) Indemnification by the Agency. The Agency will indemnify and hold ATI and its officers, directors, managers, partners, owners, affiliated entities and persons, stockholders, employees, agents, advisors, subcontractors and representatives (the "ATI Indemnified Parties") completely harmless from and against any and all claims, rights, causes of action, costs, expenses, liabilities, claims, damages, penalties, restitution, demands, actions, losses and fees, including attorneys' fees and costs ("Liabilities"), arising from, connected to, or related to (1) the sale, distribution, possession, maintenance, storage, use, theft, misappropriation,'non-use, or misuse of any equipment or other personal property made available in connection with the Services, (2) any breach of this Agreement by the Agency, including, without limitation, any representation orwarranty contained in any section or paragraph of this Agreement. (b) Indemnification by ATI. ATI will indemnify and hold the Agency and its managers and employees (the "Agency Indemnified Parties") completely harmless from and against any and all Liabilities arising from, connected to, or related to any breach of this Agreement by the Agency, including, without limitation, any representation or warranty contained in any section or paragraph of this Agreement. (c) Procedure for Indemnification. Upon receiving notice of any claim for Liability under this provision, the applicable Indemnified Parties will notify the proposed indemnifying party, in writing; provided, however, that failure to give notice will not limit or otherwise reduce the indemnification provided for in this Agreement. Within 45 days, the proposed indemnifying party must respond in writing to the Indemnified Parties stating whether or not it will fully and completely indemnify and hold the Indemnified Parties completely harmless from and against all Liabilities. If pursuant to the proceeding sentence, the proposed indemnifying party states that it will fully and completely indemnify and hold the Indemnified Parties completely harmless from and against all Liabilities then the proposed indemnifying party may, in its sole discretion, assume and conduct the legal defense of the Indemnified Parties in any suit, proceeding, action, or claim that could result in Liabilities or claims under this provision. In no case can or will the proposed indemnifying party, without the written consent of the affected Indemnified Parties, settle or compromise any indemnifiable claim or permit a default or consent to entry of any judgment, unless such settlement or compromise includes a complete release of all other Indemnified Parties with respect to any and all known or unknown, contingent or non-contingent, certain or uncertain, liability and culpability related to such indemnifiable claim. (c) Release by the Agency. The Agency hereby releases ATI and the other Indemnified Parties from and against any and all Liabilities of any kind that the Agency has, or hereafter may or will have, in connection with the equipment made available by ATI, including the sale, distribution, possession, maintenance, transportation, availability, suitability, storage or use of any such equipment. The Agency covenants not to sue or institute any other legal proceeding directly or indirectly against any of the Indemnified Parties in connection with such equipment, including the sale, distribution, possession, maintenance, transportation, availability, suitability storage or use of such equipment regardless of the legal theory advanced in such proceeding. 14. NOTICES Notices or other communications required or permitted by this Agreement will be given in writing, and will be deemed to have been given when deposited in the United States mail, return receipt requested and postage prepaid, or on the day following delivery of such notice to a major overnight delivery service. All notices must be addressed to the Parties as set forth on the signature page hereto. 1s. ASSIGNMENT This Agreement is not assignable by either Party except with the written consent of the other Party; provided, however that ATI may assign this Agreement to any of its affiliates or to the LA 1:1197415.6 6 i purchaser of all or substantially all of its assets, or to its successor entity or acquiror in the event of a merger, consolidation or change in control of such party without the consent of the Agency. 16. GOVERNING LAW; ARBITRATION This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to contracts made and performed in California and without regard to conflicts of law doctrines. All disputes, claims or controversies arising out of or relating to the enforcement or interpretation of this Agreement that are not resolved by the Parties will be submitted to final and binding arbitration before JAMS, or its successor, pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Any Party may commence the arbitration process called for in this Agreement by filing a written demand for arbitration with JAMS, with a copy to the other Party. The arbitration will be conducted in accordance with the provisions of either (i) JAMS' Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration, if the amount in controversy is $250,000 or less or (ii) JAMS' Comprehensive Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration, if the amount in controversy exceeds $250,000. The Parties will cooperate with JAMS and with one another in selecting an arbitrator from JAMS' panel of neutrals, and in scheduling the arbitration proceedings. The arbitrator's award will be provided in writing and such writing must include findings of fact and conclusions of law. The prevailing Party will be entitled to all expenses, including attorneys' fees and costs, incurred in connection with any dispute hereunder. Any of the Indemnified Parties can claim the protections of this agreement to arbitrate even if one or more of the Indemnified Parties is not a Party to this Agreement. Moreover, the agreement to arbitrate contained in this Section 15 also applies to any claims, demands, or lawsuits brought by any employee, agent, affiliate, or officer of the Agency. Notwithstanding any other provision to the contrary, if (i) ATI or any of the ATI Indemnified Parties are named as parties in any litigation or proceeding brought by any person or entity relating to, arising from, or connected to the Services, the equipment, or the sale, distribution, possession, maintenance, transportation, availability, suitability, storage or use of such equipment and (ii) the Agency fails within 45 days, to state in writing to ATI and any other ATI Indemnified Parties that the Agency will fully and completely indemnify and hold the ATI Indemnified Parties completely harmless from and against all Liabilities, then ATI and ATI Indemnified Parties named as parties in any such litigation or proceeding have the right and option, but not the obligation, to assert in that litigation or proceeding indemnity, contribution, cross-claims, or any other contractual, equitable, tort, or statutory claims against the Agency as part of that litigation or proceeding without having to arbitrate any such claims in the first instance. If (i) ATI or any of the ATI Indemnified Parties are named as parties in any litigation or proceeding brought by any person or entity relating to, arising from, or connected to the Services, the equipment, or the sale, distribution, possession, maintenance, transportation, availability, suitability, storage or use of such equipment and (ii) the Agency fails within 45 days, to state in writing to ATI and any other ATI Indemnified Parties that the Agency will fully and completely indemnify and hold the ATI Indemnified Parties completely harmless from and against all Liabilities, then it is the intent of the Parties that ATI and the other ATI Indemnified Parties have the option and right, but not the obligation, to assert all of their claims against the Agency(including but not limited to claims for indemnification, contribution, and breach of this Agreement) in the litigation or proceeding in which the person or entity has named ATI or other ATI Indemnified Parties. The provisions of this Section 16 are intended to bind and inure to the benefit not only of the Parties, but also to all of the ATI Indemnified Parties. 17. RELATIONSHIP OF THE PARTIES Nothing contained in this Agreement will create a joint venture or partnership between the Parties. ATI is an independent contractor in performing its obligations. Neither Party will be liable for any of the debts or obligations of the other and neither Party will have any authority or right to act for or incur any liability of any kind, express or implied, on the name of or on behalf of the other Party. 18. MISCELLANEOUS LA 1:1197415,6 '] r 6 (a) Publicity. ATI may issue a press release or other public disclosure regarding this Agreement or the transactions contemplated hereby. ATI may identify the Agency as a customer of ATI and may use the Agency's name in its advertising materials and other commercial solicitations. . (b) Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, . understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations or other agreements between the Parties except as specifically set forth herein. (c) Counterparts. Signatures by Facsimile. This Agreement may be executed in one or more counterparts, each of which will be deemed to be one and the same Agreement. Any facsimile signature of any Party will constitute a legal, valid and binding execution hereof by such Party. (d) Titles. The headings appearing at the beginning of the numbered Sections and at the beginning of paragraphs have been inserted for convenience only and do not constitute any part of this Agreement. (e) Modifications. No changes, modifications or waivers of any provision of this Agreement will be binding unless in writing and signed by a duly authorized representative of each Party. (f) Severability. In the event that any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. (g) Waiver. The failure on the part of any Party to exercise or enforce any rights conferred upon it hereunder will not be deemed to be a waiver of any such rights nor operate to bar the exercise or enforcement thereof at any time or times thereafter. (h) No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and no rules of strict construction will be applied against any Party. LAI 1197415.6 - 8 ATI and the Agency have executed this Agreement as of the Effective Date, ATL AGENCY: By: By Name: Name: Title: Title: NOTICE ADDRESS NOTICE ADDRESS 1935 Puddingstone Dr. La Verne, CA 91750 TEL: 909.451.6100 TEL: LAI:1197415.6 9 r 2 SCHEDULE A—Hosted Modules The below listed modules reflect the agreed upon quantity and type of modules to be hosted at the Agency. Azusa PD ATHENA Onsite Hosting Module Quantity Year One Year Two Year Three Year Four Year Five Barricaded 1 $1,200.00 $1,236.00 $1,273.08 $1,311.27 $1,350.61 Suspect: Chemical Agent Crowd 1 $1,100.00 $1,133.00 $1,166.99 $1,202.00 $1,238.06 Control: Less Lethal Munitions Crowd 1 $1,450.00 $1,493.50 $1,538.31 $1,584.45 $1,631.99 Control: Chemical Agent Crowd 1 $1,550.00 $1,596.50 $1,644.40 $1,693.73 $1,744.54 Control: PPE Wildfire 1 $1,600.00 $1,648.00 $1,697.44 $1,748.36 $1,800.81 Response: PPE Sub-Total $6,900.00 $7,107.00 $7,320.21 $7,539.82 $7,766.01 Tax $672.75 $692.93 $713.72 $735.13 $757.19 Grand $7,572.75 $7,799.93 $8,033.93 $8,274.95 $8,523.20 Total a SCHEDULE B -ATHENA PROGRAM AUTHORIZED DESIGNATED PERSONS The persons listed below are duly authorized representatives of the Agency with the power and authority to bind the Agency in connection with the entry into and any subsequent modification, extension, termination, or amendment of this Agreement, and with respect to all matters relating to the Modules and any related equipment. ATI may rely upon this representation for all matters relating to this Agreement and the Services, including replacement and repair of equipment under the Open Purchase Order, accepting new purchase orders or entering into other commercial arrangements in connection with this Agreement or otherwise without any further inquiry. Name Title Address Office Tel Mobile Tel Home Tel -Designated Authority Yes/No Maximum Dollar Commitment Authority La.TC.H ARC LEAP STAR Name Title Address Office Tel Mobile Tel Home Tel Designated Authority Yes/No Maximum Dollar Commitment Authority LaTCH ARC LEAP STAR Name Title Address Office Tel Mobile Tel Home Tel Designated Authority Yes/No Maximum Dollar Commitment Authority LaTCH ARC LEAP STAR s SCHEDULE B -ATHENA PROGRAM AUTHORIZED DESIGNATED PERSONS (CONT'D) Name Title Address Office Tel Mobile Tel Home Tel -Designated Authority Yes/No Maximum Dollar Commitment Authority LaTCH ARC LEAP STAR Name Title Address Office Tel Mobile Tel Home Tel -Designated Authority Yes/No Maximum Dollar Commitment Authority LaTCH ARC LEAP STAR Name Title Address Office Tel Mobile Tel Home Tel -Designated Authority Yes/No Maximum Dollar Commitment Authority LaTCH ARC LEAP STAR SCHEDULE C -ATHENA PRICELIST The Agency hereby requests that ATI provide the following Services on the terms and conditions set forth in the Agreement and this Schedule C. The terms of the Agreement are incorporated herein by reference. Module Onsite Hosting Price Module Price Barricaded Suspect: Chemical Agent $1,200 Crowd Control: PPE $1,550 Crowd Control: PPE Augmentation $2,025 Crowd Control: Chemical Agents $1,650 Crowd Control: Less Lethal Munitions $1,100 Wildfire Response: PPE $1,600 Traffic Control: Intersection Closure $700 STAR One Week Rental Price Module Price Crowd Control Chemical Agent $358.81 Crowd Control Less Lethal Munitions $294.09 Crowd Control PPE $449.66 Crowd Control PPE Augmentation $598.85 Barricaded Suspect Chemical Agent $291.66 Wildfire Response PPE $598.70 Traffic Control Intersection Closure $247.38 Item Replacement Cost Part Number Description Price 5-49010 Breakawa High-Vis Vest $2821 5-49020 Breakaway 'POLICE" Panels $19.23 5-56874 5.11 Brush 5000 Ba $83.33 NS256-8210 N95 Particulate Respirator Box of 20 $16.79 A2190155 Able 2 Megaphone-Siren $9128 AM2064-0291 Tactical Field/Trauma Kit $25.64 BH20TBO38K BlackHawk Travel Ba $58.33 DT1026 CS Triple Chasers $32.82 DT1032 FlameLess CS Tri-Chamber $28.30 DT1050 CS/OC Aerosol Grenade $41.59 DT1072 S edeheat Continuous Discharge CS Grenade $24.62 DT1073 Max Smoke Large Style $27.49 DT1092 CS Hanball Grenade . $23.59 DT1262 CS Liquid Ferret Rounds $17.43 DT1290 OC Powder Ferret Round $15.90 DT1292 CS Powder Ferret Rounds $16.92 DT1517 GPG Vest $136.41 DT3012 12 a Ferret CS Liquid $5.49 DT3092 12 a Ferret CS Powder $5.49 DT5099 MK-9 OC $29.34 DT6042 Muzzle Blast CS $17.59 DT6064 40mm Rubber Baton Round $21.23 DT6097 40mm Rubber Pellet Round .60pellet) $17.43 DT6172 Skat-Shell CS 40mm Round $24.62 DT6182 40mm Long Range S ede Heat $18.82 DT6325 Exact Impact Rounds $15.90 DT6326 40mm Exact Impact Marking Rounds $18.62 Police Line Barricade Tape (Police Barrier Tape $9.57 FS3-5002 3""X 1000 HC472-463L-MM24-CEM032 Hardigg Mobile Master Hard Case $726.92 Hatch ExoTech Upper Body & Shoulder $138.46 HAECB100 Protection HAEFP150 Hatch ExoTech Elbow & Forearm Protection $30.15 HAETP200 Hatch ExoTech Thigh & Groin Protection $48.62 HANH5000 Hatch Nomex Hood $20.30 HARHK25 Hatch Reactor Hard Knuckle Glove $24.00 HATS70 Hatch Shin Guards $36.30 LIC9N-117 AA Replacement Batteries $5.26 LILF-1000-R LyteFlare -Red $13.21 MON1502 Monadnock PR Trumbull Stop $2.80 MON2004 36" Monadnock Wood Baton Knurled $36.86 SDG8220-3-10 Monadnock Double cuffs (Pkg of 10 $13.08 NS614-FBR2 Wool Fire Blanket $51.92 NS614-FBB1 Fire Blanket Vinyl Bag 62"x80" $30.19 NS240801 Swift/North 1oz E eDro s $2.05 OT10406 Olympia Tools Diagonal Cutters $3.42 PMBS-2448-COV Paulson Protective Cover for 24x48 Shields $34.15 PMBS-9 BS9 Riot Shield 24x38 .250"Thick $94.23 PMDK6X250AF Paulson DK-6 Riot Faceshield $5721 PEL0550 Pelican 0550 Case $548.31 PEL1740NF Hard Case with No Foam $259.08 LN3002FR FireLine WildFire Coat $164.49 LN3003FR FireLine WildFire Over ant $159.94 ESS740-0377 ESS FirePro FS $34.10 RAWARD16DCW Rawlings Shin uards, Size Large $27.56 Safariland 67S Baton Ring Black Snap SDG67S-4PBL Basketweave UT001-33 Detour Signs To Mount To A-Frame Barrier 24" $80.56 UT300-9T A-Frame Portable Traffic Barrier MetalNVood $29.08 UT400-46 Orange Traffic Cones 7#28" $13.50 Stop Signs To Mount To A-Frame Barrier (24") $79.81 UT500-62 080 Hilht w/F-Cal CSTWATER 24 Pack Water $16.31 CFCLF-160-CHC 12 Pack Nutrition Bars $19.23 Custom Foam for Barricaded Suspect Chem $365.44 VFCUSBSCALL Agent Module Custom Foam for Crowd Control Less Lethal $345.58 VFCUSRCLL Munitions Custom Foam for Crowd Control Chemical Agent $249.04 VFCUSCCCA1 #1 Custom Foam for Crowd Control Chemical Agent $249.04 VFCUSCCCA2 #2 Custom Foam for Crowd Control Chemical Agent $249.04 VFCUSCCCA3 #3 VFCUSLIDS Custom Lid for PEL1740 Based Modules $75.64 Item Repair Cost All items deemed repairable will be billed at a rate of Aardvark Tactical's actual cost plus 10%. U,OF qh A, Ail P CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: TITO HAYES, DIRECTOR OF PUBL�I,C/ WORKS VIA: F.M. DELACH, CITY MANAGER r(o DATE: JULY 18, 2011 SUBJECT: FINAL TRACT MAP NO. 54057-13 RECOMMENDED ACTION It is recommended that the City Council acts and finds as follows: 1. That this project complies with the General Plan and is consistent with the approved tentative map and any amendments thereto. 2. The dedications as offered on the maps are hereby approved and accepted. 3. The City Council approves and authorizes the Mayor to execute the attached AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS FOR Tract No. 54057-13 to construct the required public improvements and also accept the attached Faithful Performance Bond in the amount of $118,152.21, the attached Labor and Materials Bond for $118,152.21, as guaranteed by General Insurance Company of America, and a cash Monumentation Bond in the amount of$11,750. 4. That pursuant to Section 66436(a)(3)(A)(i-vii) of the Subdivision Map Act, the City Council hereby finds that the development of the property,in the manner set forth on the subject division of land, will not unreasonably interfere with the free and complete exercise of the easements held by Azusa Land and Water Company,Starfield Azusa Heritage Oaks,LLC,Southern California Edison Company,Monrovia Nursery Company and Rosedale Land Partners II, LLC and accepts the map without the signatures of said easement holders. 5. Approve Final Tract Map No. 54057-13. 6. The City Clerk is hereby authorized to endorse on the face of the maps the certificates,which embodies the approval of said maps and acceptance of dedications. BACKGROUND This Final Map involves the approval of the final subdivision map designated 54057-13, located on the westerly side of the project area,just west of the future Alisal Park. This subdivision will complement the west portion of the neighborhood started by Fieldstone Homes, known as Heritage Oaks, which is now under construction by Lee Homes(Cityview). The developer is Brookfield Rosedale 66,LLC.,a Delaware Limited Liability Company, and the Civil Engineer is Walden & Associates. Approval of Final Tract Map No. 54057-13, Rosedale I City Council Meeting of July 18,2011 The designated City Engineer has completed final checking procedures for the final map and has found that it is in substantial conformance with the State Subdivision Map Act, City of Azusa requirements, Vesting Tentative Map 54057, Tentative Map 62150, and related conditions of approval. The Applicant has submitted the checked Final Map, the subdivision agreement, posted necessary bonds, and paid the applicable fees. Attached are the agreement for COMPLETION OF PUBLIC IMPROVEMENTS for Tracts No. 54057-13 to construct the required public improvements, as well as a Faithful Performance Bond in the amount of $118,152.21, and Labor and Materials Bond in the amounts-of $118,152.21 as guaranteed by General Insurance Company of America. A cash Monument Bond in the amount of$11,750 has also been posted. The street improvements have been mostly constructed, with finishing details to be completed in the near future. These will be offered to the City for acceptance as they are completed in their entirety. With the technical review having been completed, and the map meeting State and City requirements, the Council's approval would be a ministerial action. FISCAL IMPACT The fiscal impact of the Rosedale project was analyzed in a Fiscal Impact Study approved as part of the original Rosedale entitlements in 2003. Approval of Final Tract Map No. 54057-13, Rosedale 2 City Council Meeting of July 18, 2011 RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: CITY OF AZUSA 213 E Foothill Blvd. Azusa, CA 91702 ATTN: City Clerk SPACE ABOVE THIS LINE FOR RECORDER'S USE Exempt from recording fee per Go emment Code ' Section 6103 CITY OF AZUSA CALIFORNIA By: City Clerk AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS TRACT NO. 54057-13 between CITY OF AZUSA a California municipal corporation and BROOKFIELD ROSEDALE 66, LLC a Delaware limited liability company ORANGE\MNIARTINEZ133457. 11 AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS TRACT MAP NO. 54057-13 L PARTIES AND DATE. This Agreement for the Completion of Public Improvements ("Agreement") is entered into as of this a day of , 2011 by and between the City of Azusa, a California municipal corporation ("City") and BROOKFIELD ROSEDALE 66, LLC with it's principal office located at 3090 Bristol Street, Suite 200, Costa Mesa, CA 92626 ("Developer"). City and Developer are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties." II. RECITALS. A. Developer has heretofore submitted to City an application for approval of a tract map for real property located within City, a legal description of which is attached hereto as Exhibit "A" ("Property"), and which is identified in City records Tract Map No. 54057-13. B. Developer has not completed all of the work or made all of the public improvements required by Chapter 66, Article V of the Azusa Municipal Code, the Subdivision Map Act (Government Code sections 66410 et seg.), the conditions of approval for Tract No. 54057-13 or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land. C. Pursuant to Section 66-4650) and the applicable provisions of the Map Act, Developer and City enter into this Agreement for the timely construction and completion of the public improvements and the furnishing of the security therefor, acceptable to the City Engineer and City Attorney, for Tract No. 54057-13. D. Developer's execution of this Agreement and the provision of the security are made in consideration of City's approval of the final map for Tract No, 54057-13. III. TERMS. 1.0 Effectiveness. This Agreement shall not be effective unless and until all three of the following conditions are satisfied: (a) Developer provides City with security of the type and in the amounts required by this Agreement; (b) Developer executes and records this Agreement in the Recorder's Office of the County of Los Angeles; (c) the City Council of the City ("City Council") approves the final map for Tract No. 54057-13 and (d) Developer records the final map for Tract No. 54057-13 in the Recorder's Office of the County of Los Angeles. If the above described conditions are not satisfied, this Agreement shall automatically terminate without need. of further action by either City or Developer, and Developer may not thereafter record the final map for Tract No. 54057-13. 2.0 Public Improvements. Developer shall construct or have constructed at its own cost, expense, and liability all improvements required by City as part of the approval of Tract ORANGENMARTrNEZ03457. 12 No. 54057-13, including, but not limited to, all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities as shown in detail on the plans, profiles, and specifications which have been prepared by or on behalf of Developer for Tract Map No. 54057-13 ("Public Improvements"). The Public Improvements are more specifically described in Exhibit "B," which is attached hereto and incorporated herein by this reference. Construction of the Public Improvements shall include any transitions and/or other incidental work deemed necessary for drainage or public safety. The Developer shall be responsible for the replacement, relocation, or removal of any component of any irrigation water system in conflict with the construction or installation of the Public Improvements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water system. Developer further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public Improvements. 2.1 Prior Partial Construction of Public Improvements. Where construction of any Public Improvements has been partially completed prior to this Agreement, Developer agrees to complete such Public Improvements or assure their completion in accordance with this Agreement. 2.2 Permits: Notices: Utilih, Statements. Prior to commencing any work, Developer shall, at its sole cost, expense, and liability, obtain all necessary permits and licenses and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Developer's obligations under this Agreement. Developer shall conduct the work .in full compliance with the regulations, rules, and other requirements contained in any permit or license issued to Developer. Prior to commencing any work, Developer shall file a written statement with the City Clerk and the City Engineer, signed by Developer and each utility which will provide utility service to the Property, attesting that Developer has made all deposits legally required by the utility for the extension and provision of utility service to the Property. 2.3 Pre-approval of Plans and Specifications. Developer is prohibited from commencing work on any Public Improvement until all plans and specifications for such Public Improvement have been submitted to and approved by the City Engineer, or his or her designee. Approval by the City Engineer shall not relieve Developer from ensuring that all Public Improvements conform with all other requirements and standards set forth in this Agreement. 2.4 Quality of Work: Compliance With Laws and Codes. The construction plans and specifications for the Public Improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public Improvements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced. ORANGEWMARTiNEDl33457. 13 2.5 Standard of Performance. Developer and its contractors, if any, shall perform all work required to construct the Public Improvements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Developer warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement. 2.6 Alterations to Improvements. The Public Improvements in Exhibit "B" are understood to be only a general designation of the work and improvements to be done, and not a binding description thereof. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. If during the course of construction and installation of the Public Improvements it is determined that the public interest requires alterations in the Public Improvements, Developer shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public Improvements to be completed may be accomplished without giving prior notice thereof to Developer's surety for this Agreement. 3.0 Maintenance of Public Improvements and Landscaping. City shall not be responsible or liable for the maintenance or care of the Public Improvements until City approves and accepts them. City shall exercise no control over the Public Improvements until accepted. Any use by any person of the Public Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's acceptance of the Public Improvements. Developer shall maintain all the Public Improvements in a state of good repair until they are completed by Developer and approved and accepted by City, and until the security for the performance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs; gutters, sidewalks, signals, parkways, water mains, and sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements. It shall be Developer's responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Developer and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public Improvements or their condition prior to acceptance. 4.0 Construction Schedule. Unless extended pursuant to this Section 4.1 of this Agreement, Developer shall fully and adequately complete or have completed the Public Improvements within twelve (12) months following approval of this agreement for Tract No. 54057-13. ORANGEMMARTINEZV 3457. 14 - 4.1 Extensions. City may, in its sole and absolute discretion, provide Developer with additional time within which to complete the Public Improvements. It is understood that by providing the security required under Section 13.0 et SeMC. of this Agreement, Developer and its surety consent in advance to any extension of time as may be given by City to Developer, and waives any and all right to notice of such extension(s). Developers acceptance of an extension of time granted by City shall constitute a waiver by Developer and its surety of all defense of laches, estoppel, statutes of Iimitations, and other limitations of action in any action or proceeding filed by City following the date on which the Public Improvements were to have been completed hereunder. In addition, as consideration for granting such extension to Developer, City reserves the right to review the provisions of this Agreement, including, but not limited to, the construction standards, the cost estimates established by City, and the sufficiency of the improvement security provided by Developer, and to require adjustments thereto when warranted according to City's reasonable discretion. 4.2 Accrual of Limitations Period. Any limitations period provided by law related to breach of this Agreement or the terms thereof shall not accrue until Developer has provided the City Engineer with written notice of Developer's intent to abandon or otherwise not complete required or agreed upon Public Improvements. 5.0 Gradinu. Developer agrees that any and all grading done or to be done in conjunction with construction of the Public Improvements or development of Tract No. 54057- 13 shall conform to all federal, state, and local laws, ordinances, regulations, and other requirements, including City's grading regulations. In order to prevent damage to the Public Improvements by improper drainage or ether hazards, the grading shall be completed in accordance with the time schedule for completion of the Public Improvements established by this Agreement, and prior to City's approval and acceptance of the Public Improvements and release of the Security as set forth in Section 13.0 et seq. of this Agreement. 6.0 Utilities. Developer shall provide utility services, including water, power, gas, and telephone service to serve each parcel, lot, or unit of land within Tract No. 54057-13 in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the regulations, schedules and fees of the utilities or agencies providing such services. Except for commercial or industrial properties, Developer shall also provide cable television facilities to serve each parcel, lot, or unit of land in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the requirements of the cable company possessing a valid franchise with City to provide such service within City's jurisdictional limits. All utilities shall be installed underground. 7.0 Fees and Charges. Developer shall, at its sole cost, expense, and liability, pay all fees, charges, and taxes arising out of construction of the Public Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees, and any impact or connection fees established by City ordinance, resolution, regulation, or policy, or as established by City relative to Tract No. 54057-13. 8.0 City Inspection of Public Improvements. Developer shall, at its sole cost, expense, and liability, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public ORANGEMMARTMEZU3457. 15 Improvements and areas where construction of the Public Improvements is occurring or will occur. 9.0 Default: Notice_ Remedies. 9.1 Notice. If Developer neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may at any time thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation ("Notice"). Developer shall substantially commence the work required to remedy the default or violation within ten (10) days of the Notice. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice verbally, and Developer shall substantially commence the required work within twenty-four (24) hours thereof. Immediately upon City's issuance of the Notice, Developer and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs expenses as provided for in Section 10.0 of this Agreement. 9.2 Failure to Remedy: City Action. If the work required to remedy the noticed default or violation is not diligently prosecuted to a completion acceptable to City within the time frame contained in the Notice, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Developer and its surety, without the necessity of giving any further notice to Developer or surety. City's right to take such actions shall in no way be limited by the fact that Developer or its surety may have constructed any; or none of the required or agreed upon Public Improvements at the time of City's demand for performance. In the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Developer or its surety to cease in order to allow adequate coordination by City. Notwithstanding the foregoing, if conditions precedent for reversion to acreage can be met and if the interests of City will not be prejudiced thereby, City may also process a reversion to acreage and thereafter recover from Developer or its surety the full cost and expense incurred. 9.3 Other Remedies. No action by City pursuant to Section 9.0 et seg. of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance. 10.0 Administrative Costs. If Developer fails to construct and install all or any part of the Public Improvements within the time required by this Agreement, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney's fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law. ORANGEWMART1NEZ03457. 16 11.0 Acceptance of Improvements• As-Built or Record Drawings. If the Public Improvements are properly completed by Developer and approved by the City Engineer, and if they comply with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements, the City Council shall be authorized to accept the Public Improvements. The City Council may, in its sole and absolute discretion, accept fully completed portions of the Public Improvements prior to such time as all of the Public Improvements are complete, which shall not release or modify Developer's obligation to complete the remainder of the Public Improvements within the time required by this Agreement. Upon the total or partial acceptance of the Public Improvements by City, Developer shall file with the Recorder's Office of the County of Los Angeles a notice of completion for the accepted Public Improvements in accordance with California Civil Code section 3093, at which time the accepted Public Improvements shall become the sole and exclusive property of City without payment therefor. If Tract No. 54057-13 was approved and recorded as a single phase map, City shall not accept any one or more of the improvements until all of the Public Improvements are completed by Developer and approved by City. Issuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City's acceptance or approval of any Public Improvements. Notwithstanding the foregoing, City may not accept any Public Improvements unless and until Developer provides one (1) set of"as-built" or record drawings or plans to the City Engineer for all such Public Improvements. The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein. 12.0 . Warranty and Guarantee. Developer hereby warrants and guarantees all Public Improvements against any defective work or labor done, or defective materials furnished inthe performance of this Agreement, including the maintenance of all landscaping within the Property in a vigorous and thriving condition reasonably acceptable to City, for a period of one (1) year following completion of the work and acceptance by City ("Warranty"). During the Warranty, Developer shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion of the Public Improvements, in accordance with the current ordinances, resolutions, regulations, codes, standards, or other requirements of City, and to the approval of the City Engineer. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Developer and its surety. As to any Public Improvements which have been repaired, replaced, or, reconstructed during the Warranty, Developer and its surety hereby agree to extend the Warranty for an additional one (1) year period following City's acceptance of the repaired, replaced, or reconstructed Public Improvements. Nothing herein shall relieve Developer from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Public Improvement following expiration of the Warranty or any extension thereof. Developer's warranty obligation under this section shall survive the expiration or termination of this Agreement. 13.0 Security: Surety Bonds. Prior to execution of this Agreement, Developer shall provide City with surety bonds in the amounts and under the terms set forth below ("Security"). ORANGEIMXM21759. 17 The amount of the Security shall be based on the City Engineers approximation of the actual cost to construct the Public Improvements, including the replacement cost for all landscaping ("Estimated Costs"). If City determines, in its sole and absolute discretion, that the Estimated Costs have changed, Developer shall adjust the Security in the amount requested by City. Developer's compliance with this provision (Section 13.0 et seq.) shall in no way limit or modify Developer's indemnification obligation provided in Section 16.0 of this Agreement. 13.1 Performance Bond. To guarantee the faithful performance of the Public Improvements and all the provisions of this Agreement, to protect City if Developer is in default as set forth in Section 8.0 et seg. of this Agreement, and to secure Developer's one-year guarantee and warranty of the Public Improvements, including the maintenance of all landscaping in a vigorous and thriving condition, Developer shall provide City a faithful performance bond in the amount of ONE HUNDRED EIGHTEEN THOUSAND ONE HUNDRED FIFTY-TWO DOLLARS AND TWENTY ONE CENTS ($118,152.21), which sum shall be not less than one hundred percent (100%) of the Estimated Costs. The City Council may, in its sole and absolute discretion and upon recommendation of the City Engineer, partially release a portion or portions of the security provided under this section as the Public Improvements are accepted by City, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 54057-13, and the total remaining security is not less than twenty-five percent (25%) of the Estimated Costs. All security provided under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 12 of this Agreement, provided that Developer is not in default on any provision of this Agreement or condition of approval for Tract No. 54057-13. 13.2 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, material men, and other persons famishing labor, materials, or equipment for performance of the Public Improvements and this Agreement, Developer shall provide City a labor and materials bond in the amount of ONE HUNDRED EIGHTEEN THOUSAND ONE HUNDRED FIFTY-TWO DOLLARS AND TWENTY ONE CENTS ($118,152.21), which sum shall not be less than one hundred percent (100%) of the Estimated Costs. The security provided under this section may be released by written authorization of the City Engineer after six (6) months from the date City accepts the final Public Improvements. The amount of such security shall be reduced by the total of all stop notice or mechanic's lien claims of which City is aware, plus an amount equal to twenty percent (20%) of such claims for reimbursement of City's anticipated administrative and legal expenses arising out of such claims. 13.3 Additional Requirements. The surety for any surety bonds provided as Security shall have a current A.M. Best's rating of no less than A:VIII, shall be licensed to do business in California, and shall be satisfactory to City. As part of the obligation secured by the Security and in addition to the face amount of the Security, the Developer or its surety shall secure the costs and reasonable expenses and fees, including reasonable attorney's fees and costs, incurred by City in enforcing the obligations of this Agreement. The Developer and its surety stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public Improvements, or the plans and specifications for the Public Improvements shall in any way affect its obligation on the Security. ORANGEWMARTINEZ\33457. 18 - 13.4 Evidence and Incomoration of Security. Evidence of the Security shall be provided on the forms set forth in Exhibit "C," unless other forms are deemed acceptable by the City Engineer and the City Attorney, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Exhibit "C" and incorporated herein by this reference. 14.0 Monument Security. Prior to City's execution of this Agreement, to guarantee payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and street centerline monuments for Tract No. 54057-13 in compliance with the applicable provisions of City's Municipal and/or Development Code ("Subdivision Monuments"), Developer shall deposit cash with City in the amount of ELEVEN THOUSAND SEVEN HUNDRED FIFTY DOLLARS (S11,750.00), which sum shall not be less than one hundred percent (100%) of the costs of setting the Subdivision Monuments as determined by the City Engineer. Said cash deposit may be released by written authorization of the City Engineer after all required Subdivision Monuments are accepted by the City Engineer, City has received written acknowledgment of payment in full from the engineer or surveyor who set the Subdivision Monuments, and provided Developer is not in default of any provision of this Agreement or. condition of approval for Tract No. 54057-13. 15.0 Lien. To secure the timely performance of Developer's obligations under this Agreement, including those obligations for which security has been provided pursuant to Sections 13 et seg. and 14 of this Agreement, Developer hereby creates in favor of City a lien against all portions of the Property not dedicated to City or some other governmental agency for a public purpose. As to Developer's default on those obligations for which security has been provided pursuant to Sections 13 et seq. and 14 of this Agreement, City shall first attempt to collect against such security prior to exercising its rights as a contract lienholder under this section. 16.0 Indemnification. Developer shall defend, indemnify, and hold harmless City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Developer, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the Public Improvements, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines,judgments, awards, decrees, attorneys fees, and related costs or expenses; and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the negligence or willful misconduct of Agency as determined by a court or administrative body of competent jurisdiction. Developer's obligation to indemnify shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents. 17.0 Insurance. ORAN GEWMARTINEZl33457. 19 - 17.1 Types: Amounts. Developer shall procure and maintain, and shall require its contractors to procure and maintain, during construction of any Public Improvement pursuant to this Agreement, insurance of the types and in the amounts described below ("Required Insurance"). If any of the Required Insurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit. 17.1.1 General Liability. Developer and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage. 17.1.2 Business Automobile Liability. Developer and its contractors shall procure and maintain business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1.000,000 per occurrence. Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible. 17.1.3 Workers' Compensation. Developer and its contractors shall procure and maintain workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than $1,000,000 per occurrence, at all times during which insured retains employees. 17.1.4 Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public Improvements. Such insurance shall be endorsed to include contractual liability. 17.2 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses. 17.3 Additional Insured: Separation of Insureds. The Required Insurance shall name City, its elected officials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of Developer or its contractors, including materials, parts, or equipment furnished in connection therewith. The Required Insurance shall contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers. 17.4 Primary Insurance: Waiver of Subrogation. The Required Insurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, agents, and volunteers. All policies for the Required Insurance ORANGEIMMARTINED-33457. 110 shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy. 17.5 , Certificates: Verification. Developer and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 17.6 Term: Cancellation Notice. Developer and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall be endorsed to provide that the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on 30 days prior written notice to City. 17.7 . Insurer Rating. Unlessapproved in writing by City, all Required Insurance shall placed with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least A:VIII. 18.0 Signs and Advertising. Developer understands and agrees to City's ordinances, regulations, and requirements governing signs and advertising structures. Developer hereby agrees with and consents to the removal by City .of all signs or other advertising structures erected, placed, or situated in violation of any City ordiRance, regulation, or other requirement. Removal shall be at the expense of Developer and its surety. Developer and its surety shall indemnify and hold City free and harmless from any claim or demand arising out of or incident to signs, advertising structures, or their removal. 19.0 Relationship Between the Parties. The Parties hereby mutually agree that neither this Agreement, any map related to Tract No. 54057-13, nor any other related entitlement, permit, or approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Developer. Developer's contractors and subcontractors are exclusively and solely under the control and dominion of Developer. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City. 20.0 General Provisions. 20.1 Authority to Enter Aareement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party. 20.2 Cooperation: Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement. 20.3 Construction: References: Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement ORANGEW MARTINEZ03457. I I I shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. All references to Developer include all personnel, employees, agents, and subcontractors of Developer, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 20.4 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice: CITY: DEVELOPER: City of Azusa BROOKFIELD ROSEDALE 66, LLC P.O.Box 1395 3090 Bristol St, Suite 200 213 E. Foothill Blvd. Costa Mesa, CA 92626 Azusa, Ca.91702 Attn: Brian Geis Attn: City Manager Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent; by messenger, as of the date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S. Mail. 20.5 Amendment: Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 20.6 Waiver. City's failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City's waiver of any breach of this Agreement, shall not relieve Developer of any of its obligations under this Agreement, whether of the same or similar type. The foregoing shall be true whether City's actions are intentional or unintentional. Developer agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authorization, execution or performance of the Public Improvements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authorization, execution or performance of the Public Improvements or this Agreement. 20.7 Assignment or Transfer of Agreement. Developer shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in City's written consent, any assignment, hypothecation, or transfer shall not release or discharge Developer from any duty or responsibility under this Agreement. 20.8 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors; heirs, personal ORAN GEWMART WEEW457. 112 representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation. 20.9 No Third Partv Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 20.10 Invalidity: Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 20.11 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Los Angeles, California. Each Parry waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or-question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394. 20.12 Attomevs' Fees and Costs. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all costs and expenses incurred by the prevailing party, including actual attorneys' fees ("Costs"). Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of Costs, which shall include, without limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (a) post judgment motions and appeals, (b) contempt proceedings, (c) garnishment, levy, and debtor and third party examination, (d) discovery, and (e) bankruptcy litigation. This section shall survive the termination or expiration of this Agreement. 20.13 Counterparts. This Agreement may be executed in counterpart originals, which taken together, shall constitute one and the same instrument. O RAN GEN MARTINEZU 3457. 113 CITY OF AZUSA BROOKFI LD� SEDALE 66, LLC By: By: (signature) PRESIDENT (print name) (print name) City Manager (title) City of Azusa ATTEST: By: By: (signature) (signature) (print name) (print name) City Clerk City of Azusa (title) NOTE: DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S BUSINESS ENTITY. ORANG EWMARTINEZ\33457. 114 - CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT I State of California County of On before me, e Here Inserl Name and Title oY the icer �`�� I personally appeared �Y1rlY1 NemofSI I who proved to me on the basis of satisfactory evidence to be the person(t) whose names)dDare- subscribed to the within instrument and acknowledged to me that t�e she,4hey executed the same in � �,hemheir authorized capacity(4es), and that by (191herfH+eO signature() on the instrument the person($), or the entity upon behalf of which the person(t) acted, executed the instrument. JENNA S.SCHERMAN Commission* 1889982 I certify under PENALTY OF PERJURY under the -. Notary Public-California z laws of the State of California that the foregoing = Orange County It paragraph is true and correct. My Comm.Expires May 18,2014 I WITNESS my hand and official seal. Signator Place Notary Seal Above Signature of Notary PubLc OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document ) and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document:rA.n't�tn Document Date: •' '�e Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: - I ❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Individual ❑Individual ❑ Partner—❑Limited ❑General .p!f ittumb here ❑Partner—❑Limited ❑General Top of thumb here ❑ Attorney in Fact ❑Attorney in Fact I ❑ Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: i Signer Is Representing: Signer Is Representing: I I I 02009 National Notary Association•NationalNotary.org•1800-US NOTARY(1-800-8]&662])) Item p5907 ACKNOWLEDGMENT ................................................................................ State of California County of 1 ss. On before me, Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that-the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ............................................................................... OPTIONAL INFORMATION Date of Document Thumbprint of Signer Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known Paper Identification Credible Witness(es) Check here if Capacity of Signer: no thumbprint Trustee or fingerprint _Power of Attorney is available. CEO /CFO/ COO President/Vice-President/Secretary/Treasurer Other: Other Information: ORANGE\MMARTIN EZ\3345 7. 1 15 - ACKNOWLEDGMENT .............................................................................., State of California County of } ss. On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) . ............................................................................... OPTIONAL INFORMATION Date of Document Thumbprint of Signer Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known Paper Identification Credible Witness(es) Check here if Capacity of Signer: no thumbprint Trustee or fingerprint Power of Attorney is available. CEO/ CFO /COO President/Vice-President/Secretary/Treasurer Other: Other Information: ORANGEWMARTINEZ133457. 116 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY TRACT NO. 54057-13 BEING A PORTION OF LOT 18 OF TRACT NO. 062150, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 1311 PAGES 28 THROUGH 50, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ORANGEEWMARTINEZ\33457. 117 - EXHIBIT `B" LIST OF PUBLIC IMPROVEMENTS TRACT NO. 54057-13 ORANCEWN ARTWED33a57. 118 Exhibit ' B ' Tract 54057-13 Rosedale Total Unit Units Bond Reduced Streets Quantites Price Estimate Bond Estimate AC 1380 $ 55.00 Tons $ 75,900.00 $ 18,975.OD Base 2090 $ 40.00 Tons $ 83,600.00 0 C&G 3757 $ 25.00 LF $ 93,925.00 0 Street Lights 15 $ 1,500.00 EACH $ 22,500.00 $ 22,500.00 Concrete Pavement $ 5.00 SQ FT $ - Curb Ramps 12 $ 1,500.00 each $ 18,000.00 0 Sidewalk 8641 $ 3.50 sq ft $ 30,243.50 $ 30,243.50 Misc items 5% $ 16,208.43 total $ 324,168.50 $ 340,376.93 $ 71,718.50 Storm Drains If 18" RCP 315 $ 58.00 If $ 18,270.00 24"RCP 687 $ 82.00 If $ 56,334.00 30' RCP $ 110.00 If $ - 36' RCP $ 140.00 If $ 42" RCP $ 156.00 If $ 54" RCP $ 250.00 If $ 60" RCP $ 300.00 If $ Other RCP $ 320.00 If $ Manholes 2 $ 3,000.00 each $ 6,000.00 Junction Structures 3 $ 1,000.00 each $ 3,000.00 Catch Basins - 5 $ 3,500.00 each $ 17,500.00 Catch Basins/grates $ 4,000.00 each $ - Misc items 10% $ 10,110.40 $ 10,110.40 $ 101,104.00 $ 111,214.40 $ 10,110.40 Sewers 8"VCP - 1368 $ 57.00 If _ $ 77,976.00 10"VCP $ 61.00 If $ - House laterals 39 $ 3,000.00 each $ 117,000.00 12"VCP $ 70.00 If $ - Manholes 9 $ 3,000.00 each $ 27,000.00 Misc items 5% $ 11,098.80 $ 11,098.80 $ 221,976.00 $ 233,074.80 $ 11,098.80 Water 8" DIP 1876 $ 43.00 If $ 80,568.00 12" DIP $ 60.00 If $ - 16" DIP $ 70.00 If $ - - 12"Valves $ 3,000.00 each $ - 8"Valves 10 $ 3,000.00 each $ 30,000.00 Thrust Blocks 11 $ 1,000.00 each $ 11,000.00 Fire Hydrants 4 $ 2,000.00 each $ 8,000.00 $ 8,000.00 Misc items 5% $ 6,483.40 $ 6,483.40 $ 129,668.00 $ 136,151.40 $ 14,483.40 Grand Total est $ 709,603.13 $ 107,411.10 Contingency $ 70,960.31 $ 10,741.11 Bond amount $ 780,563.44 $ 118,152.21 EXHIBIT "C" SURETY BONDS AND OTHER SECURITY TRACT NO. 54057-13 As evidence of understanding the provisions contained in this Agreement, and of the Developer's intent to comply with same, the Developer has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto: PERFORMANCE BOND PRINCIPAL AMOUNT: 1118.152.21 Surety: General Insurance Company of America Attomey-in-fact: P:Martin Address: c/o Liberty Mutua urety . 1001 4th Avenue Suite 1700 Seattle, WA 98154 MATERIAL AND LABOR BOND PRINCIPAL AMOUNT_$118.152.21 Surety: General Insurance Company of America Attomey-in-fact: P.Martin Address: _c/o Liberty Mutual Surety 1001 4r12 Avenue, Suite 1700 Seattle WA 98154 CASH MONUMENT SECURITY: S11,750:00 Amount deposited per Cash Receipt No. Date: OPI rNGavelvtARTINFZU3457. 119 BOND NO. TM5123576/ INITIAL PREMIUM: 011047487 SUBJECT TO RENEWAL CITY OF AZUSA TRACT MAP NO. 54057-13 IMPROVEMENTS PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS the City of Azusa, California ("City") and BROOKFIELD ROSEDALE 66, LLC ("Principal'), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 54057-13 ("Public Improvements"); WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Agreement for Completion of Pubic_ Improvements dated ("Improvement Agreement'); WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and WHEREAS, Principal is required by the Improvement Agreement to provide a good and sufficient bond for performance of the Improvement Agreement, and to guarantee and warranty the Public Improvements constructed thereunder. NOW, THEREFORE, Principal and General Insurance Company of America ("Surety"), a corporation organized and existing under the laws of the State of Washington , and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City in the sum of ONE HUNDRED EIGHTEEN THOUSAND ONE HUNDRED FIFTY-TWO DOLLARS AND TWENTY ONE CENTS ($118.152.21), said sum being not less than one hundred percent (100%) of the total cost of the Public Improvements as set forth in the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, and warranties in the Improvement Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save harmless City, its officers, ORANGEVAMARTINEZ\33457. 120 employees, and agents, as stipulated in the Improvement Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As part of the obligation secured hereby, and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including° reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition. This bond is executed and filed to comply with Section 66499 et seg. of the Government Code of California as security for performance of the Improvement Agreement and security for the one-year guarantee and warranty of the Public Improvements. - IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney-in-Fact at Toronto,Canada this 30th day of June 2011. BROOKFIE R SEDALE 66 LLC GENERAL INSURANCE CC,�' ANY OF AMERICA Principal Surety By: By. Je C" P.Marlin„ Attorney-in-Fact AD WIM PR 'D�Nj (print name) title NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING COMPANY MUST BE ATTACHED TO THIS BOND. ORANGEM,ARTINEZ03457. 121 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Fappeared 1 G,�Oe ,� before me � N a h c v i footC- AY\4,� r)\& / Name(s)of Signer(s) 1 who proved to me on the basis of satisfactory evidence to be the person($) whose name($) sQare subscribed to the within instrument and acknowledged to me that &sftekHey executed the same in is authorized capacity(ies), and that by s heo4heir signature(t) on the instrument the person(t), or the entity upon behalf of which the person($) acted, executed the instrument. JENNA Commission A`1889982 1 certify under PENALTY OF PERJURY under the 'a notary Public=California = laws of the State of California that the foregoing Z Orange County ' paragraph is true and correct. My Comm.Expires May 18,2014 ) WITNESS my hand and official seal. Signature > � w Plate Notary Seal Above Signa.ra of NotaryPublic OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document v and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document 2 Title or Type of Document: PAY- _ t-�.-` Q ' ) - ) Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Individual ❑ Individual 1 ❑ Partner—❑Limited O General Top of thumb here ❑Partner—❑Limited ❑General Top of thumb here ❑ Attorney in Fact ❑Attorney in Fact i ❑ Trustee ❑Trustee i ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: 1 Signer Is Representing: Signer Is Representing: ® 0009 National Notary=k- lotion•NalionalNotery.org.1-8o0.US NOTARY(1.800-876-fi82]) ' - flem A5901 ACKNOWLEDGMENT ........................................ ...................................... State of California County of } ss. On before me, Notary Public, personally appeared proved twho o me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) .............................................................................. OPTIONAL INFORMATION Date of Document Thumbprint of Signer Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: Personally Known Paper Identification Credible Witness(es) E] Check here if Capacity of Signer. no thumbprint Trustee or fingerprint Power of Attorney is available. CEO/CFO/COO President/Vice-President!Secretary!Treasurer Other: Other Information: ORANGE\mmARTrNEZW457. 122 EXHIBIT "C" SURETY BONDS AND OTHER SECURITY TRACT NO. 54057-13 As evidence of understanding the provisions contained in this Agreement, and of the Developer's intent to comply with same, the Developer has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto: PERFORMANCE BOND PRINCIPAL AMOUNT: $118,152.21 Surety: General Insurance Company of America Attorney-in-fact: P:Martin Address: c/o Liberty Mutua Surety . 1001 4th Avenue Suite 1700 Seattle, WA 98154 MATERIAL AND LABOR BOND PRINCIPAL AMOUNT:-$118,152.21 Surety: General Insurance Company of America Attorney-m-fact: P.Marlin Address: _c/o Liberty Mutual Surety 7001 4th Avenue, Suite 1700 Seattle WA 98154 CASH MONUMENT SECURITY: $11.750:00 Amount deposited per Cash Receipt No. Date: ORANGESMMARTINEZ03457. 119 BOND N0. TM5123576/ INITIAL PREMIUM: 011047497 SUBJECT TO RENEWAL CITY OF AZUSA TRACT MAP IMPROVEMENTS LABOR AND MATERIAL BOND KNOW ALL MEN BY THESE PRESENTS: . WHEREAS the City of Azusa, California ("City") and BROOKFIELD ROSEDALE 66. LLC ("Principal"), have executed an agreement for work consisting of, but not limited to, the famishing all labor, materials,,tools, equipment, .services, .and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 54057-13 ("Public Improvements"); WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Agreement for Completion of Pubic Improvements dated 2011 ("Improvement Agreement"); WHEREAS, the Improvement Agreement is hereby referred io and incorporated herein by reference; and WHEREAS, Principal is required to furnish a bond in connection with the Improvement Agreement providing that if Principal or any of its subcontractors shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for, or about the performance of the Public Improvements, or for any work or labor done thereon of any kind, or for amounts due under the provisions of Title 15 (commencing with section 3082) of Part 4 of Division 3 of the California Civil Code, with respect to such work or labor, that the Surety on this bond will pay the same together with a reasonable attorney's fee in case suit is brought on the bond. of America NOW, THEREFORE, Principal and General Insurance Company("Surety"), a corporation organized and existing under the laws of the State of Washington and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the Public Improvements, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to the Public Improvements to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid excepting the Principal, the sum of ONE HUNDRED EIGHTEEN THOUSAND ONE HUNDRED FIFTY-TWO DOLLARS AND TWENTY ONE CENTS ORANGEIMMARTINEM3457. 123 ($118,152.21), said sum being not less than 100% of the total cost of the Public Improvements under the terms of the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal, his or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Public Improvements, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 3181, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein. As part of the obligation secured hereby, and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. This bond is executed and filed to comply with Section 66499 et sec. of the California Government Code as security for payment to contractors, subcontractors, and persons furnishing labor, materials, or equipment for construction of the Public Improvements or performance of the Improvement Agreement. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition. ORANOMMMARTTNEZU 3457. 124 IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney-in-Fact at Toronto, Canada this aotn day of June 2011. BROOKFI ROSEDALE 66. LLC General Insurance Company of America Principal/ Surety B : B : P.MAHml Attomev-in-Fact ADMA"01 EYPf 1print name to e NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING COMPANY MUST BE ATTACHED TO THIS BOND. ORANGEMAARTINEz03457. 125 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of�.Y n O<YLi\ /_�,�p'�b1\ before me,�t� a X1�C n1� A W Here Insert Name an i�of the liar I personally appeared Y\ �nU / Name(s)of Signer(s) I who proved to me on the basis of satisfactory evidence to be the person(j) whose namek)Qare subscribed to the within instrument and acknowledged to me that &e sk,f, y executed the same in ai /hoF94 iF authorized capacity(ies), and that by I heif k si nature g ($) on the instrument the person(t), or the entity upon behalf of which the person(i) acted, executed the instrument. ANNA S. SCHERMAN I Commission# 1889982 I certify under PENALTY OF PERJURY under the Notary Public -California iforegoing laws of the State of California that the Z My Comm.Expires County es May 18,2014 r paragraph is true and correct. WITNESS my hand and official seal. Signature: �C Place Notary Seal Above OPTIONAL signature of Notary Public , Though the information below is not required by law, it may prove valuable to persons relying on the document l and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: ) Document Date: Number of Pages: 4 4 Signer(s) Other Than Named Above: � Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Individual ❑Individual _ ❑ Partner—❑Limited ❑General Top of thumb here ❑ Partner—❑Limited ❑General Top of thumb here ❑ AttorneyFact In Cl Attorney in Fact O Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: I Signer is Representing: Signer Is Representing: j i 0 2009 National Notary Association-NationalNotary.org-1-8001 NOTARY(1-800.816$827) ' Item N5909 ACKNOWLEDGMENT .............................................................................. State of California County of } ss. On before me, Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing-paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ....................................................... ...................... OPTIONAL INFORMATION Date of Document Thumbprint of Signer Type or Title of Document Number of Pages in Document Document in a Foreign Language Type of Satisfactory Evidence: _Personally Known _Paper Identification Credible Witness(es) Check here if Capacity of Signer: no thumbprint Trustee or fingerprint _Power of Attorney is available. _CEO/CFO/COO _President/Vice-President/Secretary/Treasurer Other: Other Information: ORANGEWMART INEM 3457. 126 EXHIBIT "C" SURETY BONDS AND OTHER SECURITY TRACT NO. 54057-13 As evidence of understanding the provisions contained in this Agreement, and of the Developer's intent to comply with same, the Developer has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto: PERFORMANCE BOND PRINCIPAL AMOUNT:$118.152.21 Surety: General Insurance Company of America Attorney-in-fact: Address: c/o Liberty Mutua urety . 1001 4th Avenue Suite 1700 Seattle, WA 98154 MATERIAL AND LABOR BOND PRINCIPAL AMOUNT: $118.152.21 Surety: General Insurance Company of America Attomey-m-fact: Address: _c/o Liberty Mutual Surety 1001 4th Avenue, Suite 1700 Seattle WA 98154 CASH MONUMENT SECURITY: $11,750.00 Amount deposited per Cash Receipt No. Date: oxANca+MMARTINFZU3457. 119 Bond No: TM 5123576101104787 Performance Bond & Labor and Material Bond ACKNOWLEDGEMENT OF SURETY CITY OF TORONTO PROVINCE OF ONTARIO On this M' day of June, 2011, before me personally came P. Martin, to me known, who, being by me duly sworn, did depose and say that she is the Attomey-in-fact of General Insurance Companv of America, the corporation described in and which executed the within instrument; that she knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that she signed her name thereto by like order; and that the liabilities of said corporation do not exceed its assets as ascertained in the manner provided by law. Swarnme Tulsimin, a Commissioner,etc.,City of Toronto, for The Guamn[ee Company of North America. Exp m July 2,2013. r - THIS-POWER OF-AT 0RNEY.ISNOTVALID-UNLESS IT IS:PRINTED ON-RED BACKGROUND. . - .. :4480833- This Power of Attorney limits.the acts of those named herein,and they have no authority to bind:the Company except in the manner andto the extent - -herein stated. - - - : - -GENERAL INSURANCE-COMPANY:OF AMERICA - - - - - - - - - - - - SEATTLE,WASHINGTON - - - POWER%OF ATTO RNEY -KNOW ALLPERSONS BY THESE PRESENTS: That GeneralInsuranceCompany of America (the"Company"),a Washington stock insurance company, .pursuant to and by authority of the By-law and Authorization-hereinafter-set forth,does hereby name,constitute and appoint 'DINA-AMARO-ELIAS, H. CHRISTIE,ROBERT DEMPSEY,NELSON.DEOUINTAL, D.R.KEARNS, RICHARD:LONGLAND, P. MARTIN, S.:REES, MARK SKANES,CHRIS WATTERS,ALL OF THE.CITY-OF-NORTH YORK,STATEDF ONTARIO..::.................................................. . e .......................................................... ........:................................................................................::............................................:.:...:............ - , each individually ff.there be more-than one.named,:its true and lawful attomey-in-fact to.make,execute,seal,acknowledge and deliver,for and on its behalfas-surety and as Its .act and deed, any and all -undertakings, bonds, recognizances and other suretyobligations in the penal sum not exceeding . - TWENTY MILLION-AND 001100*"**"******** ******DOLLARS l$ 20,000;000:00*********-****`*********j each, and -the execution of such - undertakings,bonds,-recognizances and other surety obligations,in pursuance of these presents,shall be as binding upon the Company as if they had been duly signed by the president and attested:by the secretary.of the Company in their own:proper persons. - - - That this-power-is made and executed:pursuant tmand by authority of the following'By-law-and-Authorizabon: ARTICLE IV-Execution:&contracts:-section'12.Surety Bonds and Undertakings. arA Any officer or other-official of the'Corporation authorized:for that purpose in writing by the Chairman or the President,-andsubject to such limitations as the Chairman or-the President may.prescribe;shall appoint such attorneys-in-fact,as may-be necessary to act in behalf of the Corporation to-make' E - - execute,.seal,acknowledge and deliveras surety any and all undertakings,bonds,recognizances:and other surety obligations. Such:attomeys-in- .N. x;y - .:fact,subject to the limitations-set:forth in their-respective powers of attorney;:shall have full power to bind:the Corporation by theirsignature and d .executed,such inshuments:shall-be.as binding as if signed.bythe president and attested by.the secretary. : _ - -- By the following instrumentthe chairman orthe:president has authorized the.officer or other official named-therein to appoint attorneys-in-fact: _a: - Im - Pursuantto.Article 1V:Section-.12 of the-By-laws,Garnet:W.Elliott,Assistant Secretaryof General insurance Company of:America,.is authorized-to* m.H: n�� - :appointsuch:attorneys-in=fact as.may:be:necessary to.act in behalf of the Corporation to make, execute,seal;acknowledge and deliver as surety:TW: -62: any and-all.undertakings,-bonds;.recognizances and other surety obligations. : : - - - _ _ - _ is E, >r,@ That:the By-law and the'Authorization-set-forth above are true-copies thereof.ano are now in-full force and effect. «o G1IN WITNESS-WHEREOF,this-:Power of Att_.o-rne has:be-en subscrib.e-.d b amauthorized officer orofficial-of-the Corporation and the corporate seatof General M nsurancCompany America has been affixed thereto in;Plymouth-Meeting,Pennsylvanialhis 24th dayof March 20 . . = ."m d _ o.E GENERAL INSURANCE COMPANY OF.AMERICA a-lo MW: - IF 71_ By 4A d'. Garnet W.Elliott,Assistant Secretary T�: S- COMMONWEALTH OF.PENNSYLVANIA ss: -- - E,Y COUNTY-OF-MONTGOMERY. Onthis- 24th day ofMarch 2011 .,;before me,:a Notary.Public personally came Garnet W. Elliott, to me:known, and >.o. 0,> -acknowledged that he is:an.Assistant Secretary General Insurance.Company.of America;that he,knowsthe seal of said corporation;-and that.he executed-V N. m-e..the.above-Power of Athmey and:affixed the corporate seal of General Insurance:Company of America theretowiththe authority.snd:at the direction of said �` > ar - .�: -corporation, _ - - - - - - �:NCc° c _ IN .TESTIMONY`-WHEREO €, o subscribed my name:end affixed my notarial seal at Plymouth Meeting, Pennsylvania, on the day and year.o o- first above written 141 lq� �patl W. E`C - - _ - _ C�tt` "YC2 asWnd,spa - t%/' OF _ �. Yr^ � ou'h+wp.,Nwilpamory P.aumy - BY. A.✓r.r.v-n-+ My w,xn ssron ewims Mz s¢,201 s -Tress Pastella Notary Public —CERTIFICATE � � - dee' � -Member rennsyma.�iafwud..t onai ttotanm - '. � - -- - 1,the undersigned, Assi or '" General Insurance:Company of-America, do he certrfyahai the original power pf:attorney of which the foregoing, is a full,true and tt opy, is in full force and effect on the date'.of,this certificate and-I-do-further certifythat the officer or official-who executed the said povree:of:attorney is anAssistantSacretary.=specially authorized;by.the chairman-or the president-to appoint attomeys=in-fact as provided:in-Article'IV,-Section 12:of the By-laws of:Generafinsurance Company-of America: - This certificate and the above power of attorney%may be:signed by facsimile or mechanically reproduced signatures under and by authority of the - `'following vote of the board of directors ofGeneral Insurance Company of America:at'a meeting duly called-and held on the 18th day of September,2009. _ - -VOTED.thatthe facsimileormechanically reproduced signature any assistant secretary of the company,wherever appearing upon a certified - - - copy of any power of attorney issued bythe:companyin;connection with surety bonds,shall:be valid and binding uponthe-company With the same'forceand:effect as though manually affixed. - : - - IN_ STIMONY. HERE aye hereunto subscribed-my narr[,�l'-.art 1fi xedthe corporate seal of she said company,this � daof- -David M. -David.M.Care sistant Secretary _• yL 9�Y Ly GENERAL INSURANCE COMPANY OF AMERCIA i rL FINANCIAL STATEMENT—DECEMBER 31,2010 Assets liabilities Cash and Bank Deposit....................................... $ 40,425,026 Unearned Premiums................................................$ 446,490,508 'Bonds—U.S Government:................................ 129,739,481 Reserve for Claims and Claims Expense................. 1,004,982,471 'Other Bonds........... ............... . ............ 1,369,721,998 Funds Held Under Reinsurance Treaties................. 0 Reserve for Dividends to Policyholders.................. 86,237 Stocks.................................................................. 73,763,142 Additional Statutory Reserve.................................. 0 Real Estate.......................................................... 0 Reserve for Commissions,Taxes and Agents'Balances or Uncolimted Premiums....... 299,480,778 Other Liabilities................................................ 218.444.879 Accrued Interest and Rents................................. 17,610,975 Total__..__....._....._._.._...._._._...__._.._..... 1,670.004,095 Other Admitted Assets....................................... 148.873.842 Special Surplus Funds................. $ 11,663,352 Capital Stock............................... . 5,000,060 Paid in Surplus............................ 170,891,058 Unassigned Surplus.:................— 222,056.737 Total Admitted Assets.........................._. t 079,6M�, 74 Surplus to Policyholders_....... ._...... .......... 409.611.147 Total Liabilities and Surplus..............—..........52.079.fi15.2a2- C15t)RANC P ' Bonds are stated at amortized or investment value;Stocks at Association Market Values. GpftpOFtgTF O The foregoing financial information is taken from General Insurance Company of America's financial w statemmt filed with the state of Washington Department of Insurance. SEAL Am= I,TIM MIKOLAIEWSKI,Vice-President of General Insurance Company of America,do hereby certify that the foregoing is a true,and correct statement of the Assets and Liabilities of said Corporation,as of December 31,2010,to the best of my knowledge and belief. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Corporation at Seattle,Washington,this 30th day of March,2011. �� { 7 Vice-President 5-t262GVa�llt IWS DEN & 2552 WHITE ROAD,SUITEB-IxVINE, 92614 6236 949/660-0110 FAX 949/660-041519S0CIATES CFVR.ENGD� MS-LAND SURVEYORS-PLANNERS i June 13, 2011 WJN: 1425-842-013 Elroy L. Kiepke City Engineer City of Azusa 213 E. Foothill Boulevard Azusa, CA 91702 Re: City of Azusa Tract No. 054057-13 Monument Bond Estimate Dear Mr. Kiepke, This letter is to inform you that the monument bond amount for city of Azusa Tract No. 054057-13 has been established at $ 11,750.00. If you should have any questions or need additional information concerning this matter, please call me at (949) 660-0110. Sincerely, ON AL LAryG Ef n yg�Ey ALLEN�SG ice President, PLS 7914 /644 /0 <m < a z O No.7914 o} Exp.12-31.11 9�cF cAl\F�P� G:\pmjdato\14251DWMTmct-131Map\Tmct 13 Monument Letter.doc x Brookfield Rosedale 66 LLC 6062 Page 1 of 1 3090 Bristol Street,Suite 200 Costa Mesa.CA 92626 Cheque Total Cheque No. 27000028 (714)427-6868 $11,750.00 Cheque Date 612112011 INVOICE DATE DESCRIPTION GROSS ADJUSTS NET AMOUNT AMOUNT CkReg 6/11 .06/21/11 Monument Security 545057 11750.00 0.00 11750.00 CkReg 6/11 Land rsd00 Brookfield Rosedale 66 LLC ----------- ---------- ----------- Check Subtotal ------------------>> 11750..00 0.00 11750.00 Please Delach BelDra Presenting fm Payment a ee Brookfield Rosedale 66:LLC �pkofa ens " C#teque No rhea 3090 Bristol Streey:Sude o00 - 702328 ,.. Costa M@sa CA 92626 ,,.. 719. >,. 2700028 kx: 6x2112011 RAYE?C,ACTtI'$ • o 0 crs c15 sxe ane, ss— Jva;zsao� $11,750.00 To Clty of Azusa ,u The 2,1 E Foothif $Ivd wostc ug' �SREOUrRED Order AZSsa, CA 91ZD2 PER Of V2700002811' t:071R23284t: 8755500b07111 U ' 5- I`'"� t?c I CONSENT CALENDAR TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: ANN GRAF. DIRECTOR OF INFORMATION TECHNOLOGY VIA: F.M. DELACH, CITY MANAGER'V f"N DATE: JULY 18, 2011 SUBJECT: MATRIX SOFTWARE ANNUAL MAINTENANCE AND SUPPORT AGREEMENT RECOMMENDATION 1. It is recommended that the City Council waive formal sealed bids in accordance with Azusa Municipal Code Section 2-523 section B, computer software maintenance services and 2-523 section C, no competitive market. 2. It is recommended that the City Council approve the software maintenance and support contract from Matrix Imaging, in the amount of$12,929.00. BACKROUND The City currently uses Matrix Imaging as the support vendor for its document management system. The city needs to retain software support from the vendor in order to provide for remote technical support via phone, limit any potential down time, and for product enhancements and updates to this software. FISCAL IMPACT Funding for annual ongoing support is budgeted in the 2011-2012 Information Technology Department operating budget in accounts 48499300006415 and 48499420006415. Invoice MATRIX Date Invoice# a l` _A Cy X VA, 3151 Airway Ave Suite H-1, Costa Mesa CA 92626 L 6!612011 0611-2856 TO: END USER: City of Azusa City of Azusa 213 East Foothill Blvd. 213 East Foothill Blvd. P.O. Box 1395 Azusa, CA 91702 Azusa, CA 91702 Attn: Ann Graf-Tel# (626) 812-5024 P.O. No. Terms Due Date Rep 018876 Net 30 782011 R4 -- Description Oty -Rate Amount City of Azusa 213 East Foothill Blvd. Azusa,CA 91702 Contact Persons:Ann Graf/Magdiely Perkins Telt 626.812-5188 —Total Document Imaging System—Non-Taxable 12,929.00 12,929.00 1)Kofax Ascent Capture 25K/Mo SW Update Serv.;v7.D Serial AMM 1218; Quantity:(3) 2)EMC AppXtender Svr cc(12A9)ST SW Update Service-Quantity:(25) 3)EMC Verity K2 Client(1-49)ST SW Update Service- Quantity:(6) 4)EMC AppXtender OCR SVR SW Update Service-Quantity:(1) - — 5)EMC Verity K2 SVR for AX SW Update Service- Quantity(1) 6)Matrix Imaging's Help Desk Annual Technical Support via phone,fax and e-mail and T__ " 13 Hours Remote via VPN connection or On-Site support when deemed necessary --- Period:01 July 2011 to 30 June 2012 Note: Software updates and upgrades am solely via electronic download and no tangible media or documentation will be shipped or received. Client requires electronic delivery,Non-taxable We appreciate your prompt payment. Subtotal $12,929.00 Remit To M� IXwWAGIINuGeP�dO��1CTS, INC' Sales Tax(9.75%) $0.00 - C0'4d:9lf6, Suite H-1 suite H-1 Total $12,929.00 Phone# , ax E-mail Web Site 714-556-5600 714-513-2376 tess.gomez@matriximaginginc.com www.Mat xlmaginglnc.com I CV ? 7:0 co AzusA CONSENT CALENDAR TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: ANN GRAF, DIRECTOR OF INFORMATION TECHNOLOGY VIA: F.M. DELACH, CITY MANAGER.'e°' DATE: JULY 18, 2011 SUBJECT: NOVELL SOFTWARE ANNUAL MAINTENANCE SUPPORT AND LICENSING AGREEMENT RECOMMENDATION 1. It is recommended that the City Council waive formal sealed bids in accordance with Azusa Municipal Code Section 2-523 section B, computer software maintenance services. 2. It is recommended that the City Council approve the software maintenance support and licensing from CDW-G, in the amount of$19,845.00 BACKROUND The City currently uses Novell products GroupWise, for e-mail, Netware as the operating system on some servers, Novell Patch Management and ZENworks for remote desktop management. The city needs to retain software support and licensing from the vendor in order to limit any potential down time and for product enhancements and updates to this software. FISCAL IMPACT Funding for annual ongoing support is budgeted in the 2011-2012 Information Technology Department operating budget in accounts 48499300006504 and 48499420006504. Page 1 The Right Technology. SALES QUOTATION s Right Away.TM lijPwww,CDIN&com QUOTE NO. ACCOUNT NO. DATE 8008138-4239 XCX6403 5242398 5/13/2011 ANN GRAF CITY OF AZUSA B 213 E FOOTHILL BLVD 213 E FOOTHILL BLVD u- I H L I L CITY OF AZUSA P ANN GRAF AZUSA, CA 91702-2514 AZUSA, CA 91702-2514 o Contact: MAGGIE PERKINS Customer Phone# 6268125024 Customer P.O.# NOVELL RENEWAL QUOTE ACCOUNT MANAGER SHIPPING METHOD TERMS EXEMPTION CERTIFICATE VANESSA SEIDEL 866-339-3647 DROP SHIP-GROUND Request Terms QTY ITEM NUMBER DESCRIPTION UNIT PRICE EXTENDED PRICE 250 NOV MLA ZW PATCH MGT 1DEV 1Y SUB WIN 9.00 2250.00 Contract: MARKET 375 NVL MLA GW 1Y PRTY MNT 18.00 6750.00 Contract: MARKET 300 NOV MLA OES 1Y PRTY MNT 25.50 7650.00 Contract: MARKET 300 NOV MLA ACCESS MGR 1U 1Y PRTY MNT 1.65 495.00 Contract: MARKET 300 NOV MLA ZCM STD lY PRTY MNT 9.00 2700.00 Contract: MARKET SUBTOTAL 19845.00 FREIGHT .00 SALES TAX .00 US Currency TOTAL ip 19,845.00 CDW Government Please remit payment to: 230 North Milwaukee Ave. CDW Government Vernon Hills, IL 60061 75 Remittance Drive General Phone: 847-371-5000 Fax: 847-419-6200 Suite 1515 Account Manager's Direct Fax: 312-705-8253 Chicago,IL 60675-1515 .3) $1,41ASt F--- q;44*,.,,; AZUSA' CONSENT CALENDAR TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: ANN GRAF, DIRECTOR OF INFORMATION, TECHNOLOGY VIA: F.M. DELACH, CITY MANAGER'I��" ci DATE: JULY 18, 2011 SUBJECT: SIRSI LIBRARY SOFTWARE ANNUAL MAINTENANCE AND SUPPORT AGREEMENT RECOMMENDATION 1. It is recommended that the City Council waive formal sealed bids in accordance with Azusa Municipal Code Section 2-523 section B, computer software maintenance services and 2-523 section C, no competitive market. 2. It is recommended that the City Council approve the annual software maintenance and support agreement from SIRSI Corporation, in the amount of$27,984.33. BACKROUND The Library currently uses SIRSI software to maintain bibliographic and inventory control, circulation, demographic reporting and a web interface to the catalog on the Intranet. The city needs to retain software support from the vendor in order to limit any potential down time and for periodic product enhancements and upgrades to the software. FISCAL IMPACT Funding for annual ongoing support is budgeted in the 2011-2012 Information Technology Department operating budget in account 48499300006415. Invoice •� Page 1/1 J�lk Invoice INVMT000000020363 Date 5/15/2011 SIRSI Corporation 400 W Dynix Drive Provo UT 84604-5650 Bill To: Azusa Central Library Ship To: Azusa Central Library 213 E. Foothill Blvd. 729 N. Dalton Ave. Attn: Ann Graf Azusa CA 91702-2586 Azusa CA 91702 (^ Purchase Order No;: Custorter'1D Payment Terms ;MAINTENANCE 626-812-5232 Net 30 Item Number, Description Unit Price,:;: Ext'.Price 30-95001-000 Annual Unicorn Software Maintenance $27,984.33 $27,984.33 Effective Period: July 1, 2011 -June 30,2012 — Subtotal $27,984.33 Misc $0.00 For questions,Please Contact: Tax $0.00 Barbara M Caradine @ 800-288-8020 ext 5566 Freight $0.00 or barbara.caradine@sirsidynix.com Trade Discount $0.00 Total $27,984.33 Please Remit Payment to:SirsiDynix#774271,4271 Solutions Center,Chicago, IL 60677-4002 L CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: TITO HAES, PUBLIC WORKS DIRECTOR/ASSISTANT CITY MANAGER VIA: F.M. DELACH, CITY MANAGERr Op/ DATE: JULY 18, 2011 SUBJECT: AGREEMENT RENEWAL WITH LA WORKS FOR FY 2011/12 RECOMMENDATION It is recommended that the City Council approve and execute the attached agreement with LA Works for Fiscal Year 2011/12 in an amount not to exceed $66,116. BACKGROUND The City of Azusa has maintained a Beautification Program with LA Works for several years. The program has benefited the City by providing a supervisor and crew to perform various roadway related maintenance tasks including but not limited to the following; weed abatement in the public right-of-way, curb painting, alley clean-up, etc. The City has realized outstanding results from this program. It enables our own crews to concentrate on skilled labor tasks (concrete curb and gutter repairs, asphalt patching, etc) while other less skilled but necessary maintenance tasks are performed by LA Works. This agreement will provide 200 working days of service. The work crew is composed of 1 skilled supervisor and 3-4 trainees. FISCAL IMPACT The funds to cover the cost of this agreement are budgeted in FY 2011-2012 from Public Works- Roadway Streets Maintenance, account 412-55-661-000-6493. Attachment: LA Works Agreement LA WORKS COMMUNITY BEAUTIFICATION PROGRAM AGREEMENT On this day of July, 2011, East San Gabriel Valley Consortium d.b.a. LA Works, 5200 Irwindale Ave., Irwindale, California, hereinafter referred to as "LA Works', and the City of Azusa, 213 E. Foothill Blvd., Azusa, California, hereinafter referred to as "City" enter into this Agreement. Scope of Services The purpose of this program is to provide weed abatement, debris clean-up, public facility painting, and assistance to the public works department as requested by the City. City Responsibilities A. Contract with and fund LA Works to perform the services as described above. B. City shall pay LA Works for services rendered in twelve (12) monthly periodical payments, not to exceed $66,116 LA Works Responsibilities A. Provide the City with a crew composed of one skilled supervisor and WIA trainees. B. Perform work assignments as designated by the Public Work Director of the City of Azusa or his designee. C. The LA Works Crew will provide a vehicle and incur operating (maintenance & gas) expenses. D. LA Works will procure and maintain for the duration of the agreement, and any amendments thereto, automobile liability insurance for the vehicle for injuries to persons or damages to property that may arise from LA works use of the vehicle. LA works shall maintain limits no less than one million dollars ($1,000,000) for bodily injury and property damages, combined single limit, per occurrence and aggregate. LA Works shall obtain endorsements to the policies providing the above insurance adding the following three provisions. 11Pate 1. "The City and its elected and appointed boards, officers, agents and employees are additional insured with respect to the subject Agreement." 2. "Said policy shall not terminate, nor shall it be cancelled nor the coverage be reduced, until thirty days after written notice is given to the City of Azusa." 3. "Any other insurance maintained by the City of Azusa shall be excess and not contributing with the insurance provided by this policy." Independent Contractor LA Works and any employees of LA Works are acting as independent contractors and not as agents or employees of the City. LA Works and their employees shall not represent or otherwise hold themselves out of any of its directors, officers, partners, employees, or agents to be agents or employees of the City. LA Works and LA Works employees shall obtain no rights to retirement benefits or other benefits, including, but not limited to, medical, health, life or disability, which may accrue to City employees. Authority to Enter Agreement LA Works has all the requisite power and authority to conduct, execute, deliver and perform the services described in this Agreement. Each part warrants that the individuals who have signed this Agreement have legal power, right and authority to make this Agreement and bind each respective party. Term of Performance Said services of LA Works will commence on July 5, 2011 and shall be completed no later than June 30, 2012. LA Works shall provide 200 working days of service to the City. Service days include work completed by WIA Youth crews during the period of July 5, 2011 to June 30, 2012. In addition, LA Works shall credit the City with five (5) days of inclement weather (non-service) days during the contract year. LA Works reserves the right to count all other inclement weather. (non-service) days occurring thereafter, as part of the 200 days of service. 21Page Compensation and Method of Payment For performance of such service, the City will pay LA Works an amount of money not exceeding $66,116 which payment shall constitute the full and complete compensation for LA Works' services under this Agreement. The City shall periodically draw a warrant on behalf of LA Works upon receipt of an itemi4ed invoice conforming to the budget. Budget Community Beautification Services - Consists of 200 days of service plus the operational vehicle costs totaling $66,116. Program Evaluation and Review LA Works shall make available for inspection its performance, financial and all other records pertaining to the performance of this Agreement.to authorized City personnel, and shall issue such financial and program reports as requested by the City. Termination Either party may terminate this agreement by giving written notice of at least thirty (30) days prior to the effective termination date. This agreement may be modified at any time by mutual consent, but such modification must be in written form and signed by the authorized representative of each. Indemnification LA Works shall indemnify, defend and hold harmless the City from any claim, judgment, liability, loss or expense, including attorney's fees, court costs and necessary or convenient disbursements, for any damage whatsoever, including but not limited to, death, bodily injury or damage to property, proximately resulting from or arising out of, any act or omission of LA Works, its officers, employees, agents or contractors in the performance of this Agreement. 311ag_e Mayor Date Authorized Representative City of Azusa Chief Executive Officer Date Authorized Representative LA Works 41Pagc oF.. fq CONSENT CALENDAR TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: TITO HAES, PUBLIC WORKS DIRECTOWASSISTANT CITY MANAGER VIA: F.M. DELACH, CITY MANAGERI�t / DATE: JULY 18,.2011 SUBJECT: EXTENSION OF TERMS OF PROFESSIONAL SERVICES AGREEMENT WITH B/R PARTNERS RECOMMENDATION It is recommended that the City Council approve an amendment to the existing B/R Partners agreement, extending it to June 30, 2012, and authorize the City Manager to sign the amended agreement. BACKGROUND The City Council approved an agreement with B/R Partners to engage Mr. Roy Bruckner as the City's Project Manager for the Rosedale project on August 2, 2004. Mr. Bruckner has served in this capacity for the past seven years, and has provided all of the items listed in the Scope of Services. The agreement provides that the term may be extended for such additional time period as may be agreed upon in writing. The agreement also provides for termination by the City without cause by seven day written notice. FISCAL IMPACT There is no fiscal impact as a result of this item. While the cost of this service for this fiscal year is estimated at approximately$30,000, all expenses related to the B/R Partners contract are fully reimbursed by Rosedale Land Partners II or future Master Developer. C:\DOCUME—MZUSAU-2\LOCALS-11Temp\XPgrpwise\07-18-11 R-11 -Agenda Report-Bruckner Agreement.doc CITY OF AZUSA PROFESSIONAL SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this_day of , 2011, by and between the City of Azusa, a municipal organization organized under the laws of the State of California with its principal place of business at 213 East Foothill Boulevard, Azusa, California 91702-1295 ("City") and B/R Partners, a Corporation with its principal place of business at 3529 Padua Avenue, Claremont, CA 91711 ("Consultant"). City and Consultant are sometimes individually referred to as "Parry" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing planning and project management services to public and private clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such services for the Monrovia Nursery Specific Plan and project ("Project") as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional planning and.project management consulting services necessary for the Project("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with,this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from July 18, 2011, to June 30, 2012, unless earlier terminated as provided herein. Term may be extended for such U:VAaenda Reports107-18-11-Attachment-Rosedale Bmck:ner AgreementAK additional time period as mutually agreed-upon in writing. Consultant shall complete the Services within the term of this Agreement as the project demands, and shall meet any other established schedules and deadlines. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates: Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including,but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement as set forth in Exhibit "A" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions: In order to facilitate Consultant's.conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall a detailed schedule of anticipated performance. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. . 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement is Roy Bruckner. 3.2.5 City's Representative. The City hereby designates Francis Delach, City Manager, or his designee, to act as its representative for the performance of this Agreement U:Agenda Reports\07-18-11 -Attachment-Rosedale Bruckner Agrmment.doc ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.6 Consultant's Representative. Consultant hereby designates Roy Bruckner, or his or her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full adthority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods,techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff; consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and ham7less, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. U:\Agenda Reports\07-18-I1-Attachment-Rosedale Bruckner Agreemmt.doc 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scone of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); and (2)Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); or,in lieu of General Liability,Automobile Liability Insurance with the City of Azusa and the City of Azusa Redevelopment Agency listed as additional insured; and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2)Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers'Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of$1,000,000 per accident for bodily injury or disease. 3.2.10.3 Not Used. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insured with respect to the Work or operations - U:Wgenda Reports\07-18-11 -Attachment-Rosedale Bruckner Ageement.doe performed by or on behalf of the Consultant, including materials,parts or equipment furnished in connection with such work; and (2)the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way.. ` (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self.-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall-be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverage. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and(B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.2.10.7 Acceptability of Insurers. Insurance is to be placed with U:Wgenda Reports107-18-11-Attachment-Rosedale Bruckner Ageement.doc insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. 3.2.10.8 Verification of Coverage. Consultant shall famish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit 'B" attached hereto and incorporated herein by reference, for the number of hours that the Project demands, as determined and approved by the City Manager or his or her designee. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Consultant shall be reimbursed for out-of- pocket expenses as set forth in Exhibit `B". 3.3.4 Extra Work. At any time during the term of this Agreement, City may UAAeenda Reports\07-18-11-Attachment-Rosedale Bmelmer Agreement.doc - request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City's Representative. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3)years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. U:Agenda ReponsW7-18-11 -Attachment-Rosedale Bruckner Agreement.doc 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: B/R Partners, Inc. 3529 Padua Avenue Claremont, CA 91711 Attn: Roy Bruckner, President City: City of Azusa 213 East Foothill Blvd. Azusa, CA 91702-1295 Attn: Francis M. Delach, City Manager _ Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48)hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred; regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data: Licensing of Intellectual Pronerty. This 'Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications,.studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. WAgenda Reports\07-]8-]1-Attachment-Rosedale Bruckner A¢reement.doc Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other" similar medium without the prior written consent of City. 3.5.4 Coonerati= Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing parry in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action. 3.5.6 Indemnification. Consultant shall indemnify, hold harmless, and defend City, its Council, officers, agents and employees from and against any and all claims and losses, costs or expenses for any damage resulting in death or injury to any person and/or injury or damage to any property resulting from any act, omission, or willful misconduct of Consultant or any of its officers, employees, servants, agents, or subcontractors in the performance of this Agreement. Such cost and expense shall include reasonable attorney fees. Notwithstanding the above paragraph, and as a separate and independent covenant and obligation, Consultant shall indemnify and hold harmless, but not defend City, its Council, officers, agents and employees from and against any damage, liability, loss, cost, or expense, (excluding personal injury or property damage which is included in the above paragraph) which arise out of Consultant's negligent performance of services under this Agreement provided that such liability, loss, cost, or expense, is caused by the negligent act or omission of consultant or any of its officers, employees, servants, agents, or subcontractors in performance of this Agreement. Consultant's obligation for such indemnity and hold harmless under this paragraph shall not include any obligation to defend City, its Council, officers, agents or employees against include any actions or claim brought by any person. Consultant's obligation to indemnify City shall include reasonable attorney fees if Consultant is found to have been negligent in performance of services under this Agreement. 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County. U:Wgenda Reports\117-18-I1-Attachment-Rosedale Bruckner Agre ment doc 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 .City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References: Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction,the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not U9,4genda Reports107-18-I 1-Attachment-Rosedale Bmckner Agreement.doc paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. U:Wgcnda Reports\07-18-11-Attachment-Rosedale Bruckner Agreement.doc CITY OF AZUSA B/R PARTNERS, INC. By: By: Francis M. Delach Roy Bruckner City Manager President Attest: City Clerk Approved as to Form: Best Best & Krieger LLP City Attorney U1Agenda Reports107-18-11-Attachment-Rosedale Bruckner Agreement.doc EXHIBIT "A" _ SCOPE OF SERVICES B/R Partners, Inc. This Scope of Services describes the project management activities that B/R Partners will provide in order to assist the City of Azusa with the implementation of 517-acre master planned development, comprises of 1250 residential units, and up to 50,000 sq. ft. of retail space. Project management activities will include, but are not limited to the following, as the project demands. Coordination with: 1. Developers 2. Technical Consultants 3. City Department Heads 4. City Technical Staff 5. Other Agencies Assemble Consultant Team 1. Prepare Requests for Qualifications and Requests for Proposals 2. Evaluate Consultant qualifications and proposals 3. Prepare contracts for retention of consultants and for approval by City Council Contract Management 1. Ensure consultant's adherence to scopes of work, and compliance with provisions of contracts 2. Track consultant billings, invoices, and payments Organize and Conduct Meetings 1. Community 2. Technical 3. City Department heads 4. Other Agencies Analysis and Review 1. Analyze grading plans,site plans, architectural designs,agreements, studies and reports 2. Review and comment on developer/consultant-submitted studies and reports Public Hearings 1. Analyze development proposals and prepare reports 2. Process subdivision maps and Precise Plans of Design applications for consideration by Planning Commission and City Council 3. Attend hearings before the Planning Commission and City Council and present staff reports Prepare Status and Update Reports On an as needed basis. RVPUBWGSl544364 C-1 EXHIBIT "B" COMPENSATION B/R Partners, Inc. Services described herein shall be compensated at the following rates: Hourly Rate Roy Bruckner, President $125 Principal $110 Associate Planner $ 80 Clerical $ 35 Out of pocket expenses (includes UPS, cell phone charges, etc.) Actual cost RVPUBWGSV544364 G._2 v �OF`� t I, CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT B. GARCIA, CHIEF OF POLICE VIA: F.M. DELACH, CITY MANAGERrfv'v DATE- JULY 18, 2011 SUBJECT: PURCHASE OF THREE FORD POLICE INTERCEPTOR VEHICLES AND ONE CHEVY TAHOE POLICE VEHICLE FROM WONDRIES FLEET GROUP RECOMMENDATIONS It is recommended that the City Council approve the purchase of three 2011 Ford Police Interceptor vehicles and one Chevy Tahoe Police Vehicle Package from Wondries Fleet Group, 1247 W. Main Street, P.O. Box 3850 Alhambra, CA 91801 in an amount not to exceed $104,553.53. It is further recommended that City Council approve the purchase of these vehicles based on the competitive bid process completed by the County of Los Angeles as authorized under AMC Section 2-523 (e), from which they ordered Ford Police Interceptor vehicles and Chevy Tahoe Police Vehicles, Order #PO-SH-11321939-1 and Order #PO DP-SH-10322064 respectively. BACKGROUND Each year the Police Department budgets to replace high mileage patrol vehicles. This fleet rotation involves replacing one fourth of the fleet to reduce the annual capital outlay for patrol vehicles while providing safe, reliable and up-to-date equipment for patrol officers and other public safety personnel. Not only do these high mileage vehicles become expensive to maintain, but compromise officer and public safety. Several police vehicles are beyond their warranties and in need of retirement from patrol deployment. All four of these vehicles will be used as marked black and white patrol units. The County of Los Angeles Purchase Orders were granted at a base price, not including tax and tire fees, of $22,140.00 per Ford Interceptor and $29,689.00 per Chevy Tahoe, which includes driver and 1 front passenger side-impact airbags. The total cost for all four police vehicles inclusive of tax and tire fees is $104,553.53. FISCAL IMPACT There are adequate funds available for this purchase using the 2011/12 Police Equipment Replacement Fund account 946-20-310-000-7135 for the four marked black and white police vehicles. Prepared by: Sam Jauregui, Jail, Fleet and Facilities Coordinator Sam Gonzalez, Captain 2 .aFG s CONSENT CALENDAR TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JAMES MAKSHANOFF, ASSISTANT CITY MANAGER VIA: F.M. DELACH, CITY MANAGER I t l,/ DATE: JULY 18, 2011 SUBJECT: ASSIGNMENT AND ASSUMPTION OF FUNDING AND ACQUISITION AGREEMENT— CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO. 2005-1 RECOMMENDED ACTION It is recommended that the City Council approve and authorize execution of the Assignment and Assumption of Funding and Acquisition Agreement. BACKGROUND The City of Azusa completed the formation of the City of Azusa Community Facilities District No. 2005-1 (CFD)in 2006 in order to assist the then-master developer and owner of the Monrovia Nursery property,Azusa Land Partners (ALP) with public infrastructure financing, as provided-for in the Development Agreement. Since the creation of the CFD, the City of Azusa, as Issuer, has issued $71,150,000 of tax bonds for public infrastructure financing within the Rosedale project area, which ALP has partially utilized for the allowed purposes. Those allowed purposes, along with other rights and obligations, were detailed in a Funding and Acquisition Agreement approved as part of the CFD formation process, and was executed on August 1,2005. See Exhibit B. Since the foreclosure of the Rosedale site, ALP is no longer the owner and developer. The new master developer is Rosedale Land Partners II(RLP),who desires to continue the development and construction of the Rosedale community to completion, and desires to assume all rights and obligations under the Funding and Acquisition Agreement. The attached Assignment and Assumption Agreement,Exhibit A,would accomplish the transfer of rights and obligations of the Funding and Acquisition Agreement from ALP to RLP. FISCAL IMPACT The fiscal impact of the Rosedale project was analyzed in a Fiscal Impact Study approved as part of the original Rosedale entitlements in 2003. Approval of Assignment and Assumption of Funding and Acquisition Agreement 1 City Council Meeting of July 18,2011 ASSIGNMENT AND ASSUMPTION AGREEMENT OF FUNDING AND ACQUISITION AGREEMENT The Assignment and Assumption Agreement of Funding and Acquisition Agreement ("Assignment Agreement"), dated as of 2011, among the CITY OF AZUSA for and on behalf of Community Facilities District No. 2005-1 (Rosedale) (the "Issuer"), AZUSA LAND PARTNERS, LLC, a Delaware limited liability company (referred to herein as the "Prior Developer"), and ROSEDALE LAND PARTNERS II, LLC, a Delaware limited liability company (referred to herein as the "New Developer"). WHEREAS, the New Developer has acquired all of the Prior Developer's property in Community Facilities District No. 2005-1 (the "CFD"); WHEREAS, the CFD consists of two improvement areas: hnprovement Area No. 1 and Improvement Area No. 2; WHEREAS, the Issuer and the Prior Developer entered into the Funding and Acquisition Agreement, dated August 1, 2005 (the "Funding Agreement") in order to finance certain public capital facilities to be owned by the Issuer and other public agencies (the "Facilities"); WHEREAS, a portion of the Facilities were constructed by the Prior Developer and acquired by the Issuer(the "Prior Developer's Facilities")pursuant to the Funding Agreement; WHEREAS, a portion of the Facilities are to be constructed by the New Developer (the "New Developer's Facilities") and the New Developer desires to have the Issuer acquire the New Developer's Facilities pursuant to the terms of die Funding Agreement; WHEREAS, the Issuer has heretofore issued its $71,125,000 City of Azusa Community Facilities District No. 2005-1 (Rosedale) Improvement Area No. 1 2007 Special Tax Bonds (the "Bonds")within Improvement Area No. 1; WHEREAS, a portion of the proceeds of the Bonds have heretofore been expended by the Issuer to acquire the Prior Developer's Facilities; WHEREAS, the New Developer desires to have the Issuer acquire the New Developer's Facilities with the proceeds of die Bonds remaining on deposit with the trustee for the Bonds as of the Effective Date of this Assignment Agreement, any available special taxes in the CFD, and the proceeds of any bonds that may be issued in Improvement Area No. 2 (collectively, the "Funding Sources"), in the manner set forth in the Funding Agreement; WHEREAS, to accomplish the financing of the New Developer's Facilities, the Prior Developer, the New Developer, and the Issuer desire to enter into this Assignment Agreement; NOW THEREFORE, in consideration of the foregoing premises, the parties agree as follows: 45635.080171\5867143.3 1 t. Assignment and Assumption of Rights and Obligations, The Prior Developer hereby fully and unconditionally assigns to the New Developer all of its rights and obligations in and under the Funding Agreement arising after the "Effective Date" as hereinafter defined, including, but not limited to, the right to all of the Funding Sources to finance the New Developer's Facilities, The New Developer accepts such assignment and hereby fully and e unconditionally assumes all of the obligations, duties and liabilities of the Prior Developer in and under the Funding Agreement arising after the Effective Date and agrees to perform all such obligations in accordance with the terms thereof. The New Developer specifically disclaims any obligation or responsibility with respect to the construction or financing of any of the Prior Developer's Facilities. 2. Consent to Assignment and Assumption. The City for itself and on behalf of the Issuer hereby consents to the assignment to, and assumption by, the New Developer of the Funding Agreement. 3. Effective Date. The assignment of rights and assumption of obligations as set forth herein shall become effective upon the date of execution and delivery of this Assignment Agreement, being 2011. 4. Notices. The New Developer notifies the Issuer that its address for receipt of notice under the Funding Agreement is as follows: Rosedale Land Partners II, LLC c/o Christopher Development Group; Inc. 19 Corporate Plaza Newport Beach, CA 92660 (949) 729-1229 (with a copy to, which copy shall not constitute notice to the New Developer): Robert M. Haight, Jr. Goodwin Procter LLP 601 South Figueroa Street, Suite 4100 Los Angeles, CA 90017 5. Construction. This Assignment Agreement shall be deemed to be a contract made and delivered in the State of California and shall be governed by and construed in accordance with the laws of the State of California. 6. Attornevs' Fees. In the event of a dispute or litigation concerning the enforcement, validity or interpretation of this Assignment Agreement, or any part hereof, the losing party shall pay all costs, charges, fees and expenses (including reasonable attorneys' fees and disbursements) paid or incurred by the prevailing party, regardless of whether any action or proceeding is initiated relative to such dispute and regardless of whether any such litigation is prosecuted to judgment. For the purpose of this Assignment Agreement, the term "attorneys' fees" or "attorneys' fees and costs" shall mean the fees and expenses of counsel to the parties 45635"0800115867143.3 2 hereto, which may include printing, photocopying, duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals, librarians and others not admitted to the Bar but performing services under the supervision of an attorney. 7. Execution in Counterparts. This Assignment Agreement may be executed in counterparts, each of which shall ge an original and all of which shall constitute but one and the same instrument. [The balance of this page intentionally left blank] 45635.0800115867143.3 3 Issuer: CITY OF AZUSA, for itself and the CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO. 2005-1 (ROSEDALE) By: Name: Title: Prior Developer: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its: Administrative Member By: Chris Gibbs, President New Developer: ROSEDALE LAND PARTNERS II, LLC, a Delaware limited liability company By: CDG Rosedale Investment, LLC, a Delaware limited liability company Its: Administrative Member By: Name: Title: 45635.08001 M671.13.3 4 EX.H t 151T 8 FUNDING AND ACQUISITION AGREEMENT Relating to CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO. 2005-1 (ROSEDALE) Between THE CITY OF AZUSA and AZUSA LAND PARTNERS, LLC August 1, 2005 -FUNDING &ACOUISITION AGREEMENT COMMUNITY FACILITIES DISTRICT NO. 2005-1 (ROSEDALE) This FUNDING AND ACQUISITION AGREEMENT (the "Agreement") is entered into the I" day of August, 2005 by and between the CITY OF AZUSA, a municipal organization organized and operating under the laws of the State of California (the "City"), and AZUSA LAND PARTNERS, LLC, a Delaware limited liability company (the "Developer"). RECITALS (A) Developer owns and is currently developing approximately 1,250 single- family residences on that certain real property located on approximately 317 acres of land commonly known as the "Rosedale Project" (the "Property") located in the City of Azusa. (B) The City, is in the process of establishing a community facilities district with two or more improvement areas (individually, an "Improvement Area" and, collectively, the "Improvement Areas") pursuant to the provisions of Chapter 2.5 (commencing with § 53311) of Part 1 of Division 2 of Title 5 of the Government Code, commonly known as the "Mello-Roos Community Facilities Act of 1982" (the "Act''), over and including.the Property for the purpose of selling bonds, in one or more series within each Improvement Area (the "Bonds), in an amount sufficient to finance the acquisition of land and improvements thereon for public use, and the design, planning, engineering, installation, and construction of those certain public facilities and improvements, including utilities, to be owned and maintained by (i) the City (the "City Facilities"), and (ii) Azusa Unified School District (the "School District"), the Metropolitan Transit Authority("MTA"), the Los Angeles County Sanitation District No. 22 (the "Sanitation District"), the City of Glendora ("Glendora") and other local agencies, as reasonably approved by the City (the "JCFA Facilities" and together with the City Facilities, the "Public RVPUB\MUM\682865.1 1 Facilities"). The Public Facilities are generally described in Exhibit "A" attached hereto, which Public Facilities are necessary to the development of the Property. Said community facilities district shall be known as, and each Improvement Area shall be a part of, the "City of Azusa Community Facilities District No. 2005-1 (Rosedale)" (the "District'). (C) Section 53313.5 of the Act provides that a community facilities district may finance the purchase of facilities completed after the adoption of the resolution of formation establishing the community facilities district if the facilities have been constructed as if they had been constructed under the direction and supervision, or under the authority of, the local agency whose governing body is conducting proceedings for the establishment of the District. (D) The purpose of this Agreement is to provide for the maintenance, design and the construction of the City Facilities, and the issuance and sale of the Bonds of the District to finance the acquisition of public land and public improvements, and the design, planning, engineering, financing, installation, and construction of,the Public Facilities and expenses incidental thereto. (E) Capitalized terms used herein and not otherwise defined shall have the meaning set forth in Exhibit E attached hereto and.by this reference herein incorporated. AGREEMENTS NOW, THEREFORE, in consideration of the preceding recitals and the mutual covenants hereinafter contained, the parties agree as follows: Section 1. Establishment of District. The City has initiated proceedings pursuant to the Act for the establishment of the District. Such proceedings include elections within each Improvement Area pursuant to Sections 53326 and 53353.5 of the Act on (i) the question of the issuance of the Bonds for each Improvement Area of the District to finance the acquisition of RVPUBWUM\682865.1 2 public land and public improvements, and the design, planning, engineering, .construction management, and financing and the installation and construction or acquisition of the Public Facilities, (ii) the question of the annual levy of special taxes within each Improvement Area on those portions of the Property subject to the special taxes, for the payment of the principal of and interest on the Bonds of such Improvement Area and the annual administrative expenses of the City and the District in levying and collecting such special taxes, paying the principal and interest on such Bonds and providing for the registration, exchange and transfer of such bonds, including the fees of fiscal agents and paying agents, and any necessary replenishment of the reserve fund for such Bonds, together with paying the annual maintenance expenses financed by the District (if any), and (iii) the question of the establishment of an appropriations limit for each Improvement Area. From time to time prior to the issuance of the Bonds for an Improvement Area, at the written request of the Developer, and subject to the Developer advancing funds as determined by the City as necessary to pay all costs related thereto, the City shall use its best efforts to undertake proceedings which may be deemed necessary to amend the rate and method of apportionment applicable to such Improvement Area of the District or to amend the boundaries of such Improvement Area. Section 2. Sale of Bonds. The City may proceed, using its reasonable best efforts, as hereinafter provided, with the sale of the Bonds, in one or more series, for each of the Improvement Areas of the District in an aggregate principal amount not to exceed $120,000,000 and with an escalating debt service amortization schedule for each series of Bonds not to exceed thirty-five (35) years, for the purpose of raising an amount sufficient to pay for the acquisition of public land and public improvements, and the design, planning, engineering, construction ,RVPUBWiUM\682865.1 3 management, and financing, and the installation and construction or acquisition of the Public Facilities. In connection with the issuance of the first series of Bonds, the City on behalf of itself and the District shall establish criteria for the issuance of Additional Bonds of the District which meet the criteria of the financing policies of the City. The timing of the issuance and sale of the first series of Bonds and any Additional Bonds, the aggregate principal amount thereof, and the terms and conditions upon which the shall be sold shall be as set forth in this Agreement and P Y gr otherwise as determined by the City in its reasonable discretion after consultation with the Developer. Not by way of limitation of the foregoing, the riming of the issuance and sale of the first series of Bonds and any Additional Bonds shall be as soon as reasonably practicable, as determined by the City in consultation with its financial advisor, underwriter and other consultants and counsel. Section 3. Advance of Certain Expenses. Pursuant a Landowner Deposit Agreement, dated November 1, 2004 between the City and Developer (the "Deposit Agreement"), Developer shall pay and advance all of the costs reasonably associated with the establishment of the District and the sale of the Bonds. Such costs to be paid or advanced by the Developer shall include the City's reasonable out-of-pocket expenses, if any, associated with engineering services provided by outside engineering consultants in connection with the establishment of the District and the determination of the sizing of the Bonds and the method of apportioning and levying the special taxes on the Property to pay the principal of and interest on the Bonds, and reasonable travel expenses of the City relating to the sale of the Bonds ("Reimbursable Expenses"). All of the Reimbursable Expenses paid or advanced by the City shall be reimbursed to the Developer from the uncommitted and unexpended deposits made by the Developer and/or the proceeds of the sale of the Bonds, as soon after receipt of the proceeds of the Bonds as is reasonably possible. RVPUB%MUM\682865.1 4 The City shall keep records of all Reimbursable Expenses advanced by the City pursuant to this Section 3 which records shall be available for inspection by Developer during regular business hours. The sole source of funds for reimbursement of any advance expenditure made by the City or the Developer shall be the uncommitted and unexpended deposits made by the Developer and/or proceeds of the Bonds. Section 4. Tax Requirements. The timing of the sale of the Bonds of any series for the District or any Improvement Area therein, the nature of the investments in which the proceeds of the Bonds shall be invested, the duration of such investments, and the timing of the expenditure of such proceeds shall be as set forth in the Fiscal Agent Agreement and otherwise as determined by the City in its reasonable discretion; provided, that in all such matters City shall comply with the requirements of and limitations prescribed by the provisions of Sections 103 and 141 through 150 of the Internal Revenue Code of 1986 (the "Code"), as amended, and the implementing regulations of the United States Department of the Treasury. The City shall not be required to take any such action which in the opinion of the City's bond counsel could result in the Bonds being classified by the United States Department of the Treasury as "arbitrage bonds" or which could otherwise result in the interest on the Bonds being included in gross income for purposes of Federal income taxation. Should any change in or regulatory interpretation of any such requirement or limitation which may occur after the date of this Agreement require or necessitate, in the reasonable opinion of such bond counsel, any action on the part of the City in order to avoid such a classification or loss of tax exemption, the City shall notwithstanding any provision of this Agreement, forthwith take such action. In the event the City fails to comply with requirements set forth above in this Section 4, the City's liability is RVPUB\MUM\682865.1 - 5 limited to the special tax revenues generated by an Improvement Area of the District, as applicable. During the construction phase of the Project, the City and Developer shall meet on a regular basis, as agfeed upon by both parties, to review facilities being constructed and ascertain the City's compliance with the Code. If changes in the Code disqualify certain facilities constructed by the Developer from being funded by the District, the Developer shall be solely liable for the costs of construction or acquisition of such facilities. Section 5. Amounts to be Included in Bonds. The City shall be authorized to include in the aggregate principal amount of the Bonds within each Improvement Area an amount sufficient to fund (i) reserve fund which does not exceed the amount permitted under the Code, (ii) capitalized interest on the Bonds for such period, not in excess of twenty-four(24) months, as the City, in consultation with the Developer, may determine is appropriate, (iii) the amount of the discount of the underwriter who purchases the Bonds, (iv) the Reimbursable Expenses, and (v) other typical and reasonable out-of-pocket expenses incurred by the City or the Developer in connection with the issuance and sale of the Bonds, including bond counsel fees, disclosure counsel fees, legal fees, fees of the bank which will act as fiscal agent for the Bonds, special tax consultant fees, fees and other costs of the appraisal and other fees and costs normally incidental to the sale of Bonds. Subject to the City's right of review and approval of specific costs as set forth in the next succeeding paragraph of this Section 5, the City shall also include with the aggregate principal amount of the Bonds for those items which are public facilities owned and operated by a public agency and not inconsistent with Exhibit "G" to the Development Agreement, the following: (i) all City development and building permit, application, plan RVPUB\MUM\682865.1 6 checking, inspection and other fees and charges, by whatever name called, that are attributable to the design, planning, engineering, construction management, installation, and construction of the Public Facilities that are payable out of the proceeds of the Bonds; and (ii) all other Developer costs and expenses not included in clause (i) that are reasonably determined by the City to equitably pay or reimburse Developer for costs and expenses incurred by it which are related to the establishment of the District and the design, planning, engineering, financing, and installation and construction or acquisition of the Public Facilities, including the construction management fee described in the definition of Actual Costs and the costs and expenses of consultants (e.g., DPFG), attorneys (e.g., Pillsbury Winthrop Shaw Pittman) and engineers. The City Manager or his/her designee, shall have the right to approve all of Developer's costs and expenses to be paid or reimbursed from proceeds of the Bonds subject to the following: (i) to the extent that Developer incurs costs that are eligible for financing by the bistrict together with other costs that are not eligible for inclusion in the principal amount of the Bonds, the City will approve a fair allocation of eligible versus non-eligible costs; (ii) the City Manager or his/her designee shall approve or disapprove Developer's submittals for cost approvals within thirty (30) calendar days after receipt and, if any submitted costs are disapproved, he/she shall specify in writing the reasons therefor; and (iii) approval of Developer's submittals shall not be unreasonably withheld or conditioned. Developer shall be entitled to submit written requests to the City Manager or his/her designee for approval of costs to be paid or reimbursed with proceeds of the Bond on a periodic basis, as costs are incurred but not more frequently than monthly. Each such submittal shall be supported by adequate written documentation to justify the submittal, including as applicable, copies of relevant contracts, RVPUB\MUM\682865.1 7 invoices, evidence of payment, and such other supporting information as the City may reasonably require consistent with the terms of this Agreement. Section 6. Construction of Facilities. �a) Plans. To the extent that it has not already done so, the Developer shall cause plans to be prepared for the City Facilities (the "Plans"). The Developer shall obtain the written approval-of the Plans in accordance with applicable ordinances and regulations of the City and/or the City entity that will own and operate the City Facilities. Copies of all Plans shall be provided by the Developer to the City Manager, or designee thereof, upon request therefore, and, in any event, as built drawings and a written assignment of the Plans for any City Facility shall be provided to the City prior to its formal acceptance of the City Facility. (b) Duty of Developer to Construct. All City Facilities to be acquired hereunder specified in Exhibit B hereto, as amended from time to time, shall be constructed by or at the direction of the Developer in accordance with the approved Plans. The Developer shall perform all of its obligations hereunder and shall, conduct all operations with respect to the construction of City Facilities in a good, workmanlike and commercially reasonable manner, with the standard of diligence and care normally employed by duly qualified persons utilizing their hest efforts in the performance of comparable work and in accordance with generally accepted practices appropriate to the activities undertaken. The Developer shall employ at all times adequate staff or consultants with the requisite experience necessary to administer and coordinate all work related to the design, engineering, acquisition, construction and installation of the City Facilities to be acquired by the City from the Developer hereunder. The Developer shall be obligated (i) to construct and convey to the City (or other applicable governmental agency) all City Facilities and Discrete Components listed in Exhibit B RVPUB\MUd1\682865.1 8 hereto, and (ii) to use its own funds to pay all costs thereof in excess of the Purchase Prices thereof to be paid therefor hereunder. The Developer shall not be relieved of its obligation to construct each City Facility listed in Exhibit B hereto and Discrete Component and convey each such City Facility to the City (or other applicable governmental agency) in accordance with the terms hereof, even if, (i) because of the limitations imposed by Section 7(f) hereof, the Purchase Price for such City Facility is less than the Actual Cost, or cost to the Developer, of such City Facility, or (ii) there are insufficient funds in the Improvement Fund to pay the Purchase Price thereof, and, in any event, this Acquisition Agreement shall not affect any obligation of the Developer under any other agreement to which the Developer is a party or any governmental approval to which the Developer or any land within the District is subject, with respect to the City Facilities required in connection with the development of the land within the District. Such obligation of the Developer to construct and convey such City Facilities, and pay the costs thereof in excess of available monies in the Improvement Fund, shall be an obligation of the Developer as a party to this Acquisition Agreement and not an obligation of the Developer in its capacity as an owner of any portion of the lands within the District. (c) Relationship to Public Works. This Agreement is for the acquisition by the City of the Facilities and payment for the Discrete Components thereof listed in Exhibit B, as amended from time to time, from moneys in the Improvement Fund and is not intended to be a public works contract. The City and the Developer.agree that the City Facilities are of local, and not state-wide concern, and that the provisions of the California Pubic Contract Code shall not apply to the construction of the City Facilities. The City and the Developer agree that the Developer shall award all contracts for the construction of the City Facilities listed in Exhibit B RVPUB\MUM\682865.1 9 hereto, and that this Agreement is necessary to assure the timely and satisfactory completion of the City Facilities and that compliance with the Public Contract Codewith respect to the City Facilities would work an incongruity and would not produce an advantage to the City or the District. Notwithstanding the foregoing, the Developer shall award all contracts for construction of the City.Facilities listed in Exhibit B hereto, as amended from time to time, to the lowest responsible bidder as determined by the Developer. The Developer shall solicit at least three bids for the construction of each City Facility, and the Developer or his designee shall open the bids actually received and read them aloud immediately following the submittal deadline. The bids for general contractors shall require that general contractors provide reasonable opportunity for local contractors to participate as subcontractors. Upon written request of the City Manager, or his designee, the Developer shall provide an analysis of bids for construction of the City Facilities, constructed or to be constructed by or under the supervision of the Developer. The costs of materials shall be part of the contractors' bids for constructing the City Facilities. Nothing in this Agreement shall (i) require the Developer to publicly or informally bid for materials, or (ii) prevent the supply or sale of materials by the Developer to the contractors constructing the City Facilities. If requested in writing by the City, the Developer shall demonstrate to the City that such materials were obtained at reasonable prices considering the terms of delivery and other factors and shall not charge the City a premium for supplying such materials (but shall be entitled to recover the costs of procuring such materials). The Developer shall develop or cause to be developed and shall maintain or cause to be maintained a cost-loaded project schedule, using the critical path method, providing for all major project elements included in the construction of any City Facility to be acquired hereunder, so RVPUB,\MUM\682865.1 10 that the whole project is scheduled in the most efficient manner. The Developer shall provide the City Manager with complete copies of the schedule and each update to the schedule for the City Manager or his designee to review. From time to time (expected to beat least weekly) at the request of the City Manager or his designee, the Developer shall meet and confer with City staff, consultants and contractors regarding matters arising hereunder with respect to the City Facilities and the progress in constructing and acquiring the same, and as to any other matter related to the City Facilities or this Agreement. The Developer shall advise the City Manager or his designee in advance of any coordination and scheduling meetings to be held with contractors relating to the City Facilities, in the ordinary course of performance of an individual contract. The City Manager or his designee shall have the right to be present at such meetings, and to meet and confer with individual contractors if deemed advisable by the City Manager or his designee to resolve disputes and/or ensure the proper completion of the City Facilities. (d) Independent Contractor. In performing this Agreement, the Developer is an independent contractor and not the agent or employee of the City or the District. Neither the City nor the District shall be responsible for making any payments to any contractor, subcontractor, agent, consultant, employee or supplier of the Developer. (e) Performance and Payment Bonds. The Developer agrees to comply with all applicable performance and payment bonding requirements of the City(and other applicable City entities and/or City utilities) with respect to the construction of the City Facilities. Performance and payment bonds shall not be required of the Developer to the extent moneys are available in the Improvement Fund to pay the Purchase Price, as defined in Section 7(c) below, of a City Facility provided that all contractors and/or subcontractors employed by the Developer in RVPUB\MUMM2865.1 I I connection with the construction of City Facilities shall provide a labor and materials and performance bonds which name the City as an additional insured. (� Contracts and Change Orders. The Developer shall be responsible for entering into all contracts and any supplemental agreements (commonly referred to as "change orders") required for the construction of the City Facilities listed in Exhibit B hereto, as amended from time to time, and all such contracts and supplemental agreements shall be submitted to the City Manager or his designee. Prior approval of supplemental agreements by the City Manager shall only be required for such change orders which in any way materially alter the quality or character of the subject City Facilities, or which involve an amount equal to the greater of ten percent (10%) of the amount of the bid for the City Facility. The City expects that such contracts and supplemental agreements needing prior approval by the City Manager will be reasonably approved or denied (any such denial to be in writing, stating the reasons for denial and the actions, if any, that can be taken to obtain later approval) within ten (10) business days of receipt by the City Manager thereof. To the extent that a supplemental agreement, approved by the City Manager, or his designee, increases the Actual'Cost of a City Facility, such increased cost may be payable as part of the Purchase Price of the related City Facility as provided in Section 7 hereof. (g) Time for Completion. The Developer agrees that this Agreement is for the benefit of the City and the Developer and, therefore, the Developer represents that it expects to complete the City Facilities and to have requested payment for the City Facilities under this Agreement within thirty-six (36) calendar months from the date of the closing of the series of Bonds the proceeds of which are to be used to finance the City Facilities. Any.failure to complete the City RVPUB\MUM\682865.1 12 Facilities within said time period shall not, however, in itself, constitute a breach by the Developer of the terms of this Acquisition Agreement. The Developer agrees to use its good faith efforts to complete all City Facilities within thirty-six (36) calendar months from the date of closing of the series of the Bonds the proceeds of which are to be used to finance the City Facilities. Section 7. Acquisition and Payment of Facilities. (a) inspection. No payment hereunder shall be made by the City to the Developer for a Public Facility or Discrete Component until the City Facility or Discrete Component has been inspected and found to be completed in accordance with the approved Plans by the City. Unless otherwise provided in a Supplement, the City shall make or cause to be made regular on-going site inspections of the City Facilities to be acquired hereunder. The Developer agrees to pay all inspection, permit and other similar fees of the City applicable to construction of the City Facilities. (b) Agreement to Sell and Purchase City Facilities. The Developer hereby agrees to sell the City Facilities listed in Exhibit B hereto, which maybe amended from time to time by approval of the City Manager or his designee, to the City (or other applicable City agency that will own a City Facility), and the City hereby agrees to use amounts in the Improvement Fund to pay the Purchase Prices, as defined below, thereof to the Developer, subject to the terms and conditions hereof. The City shall not be obligated to finance the purchase of any City Facility until the City Facility is completed and the acceptance date for such City Facility has occurred; provided that the City has agreed to make payments to the Developer for certain Discrete Components shown on Exhibit B hereto, as such exhibit may be supplemented. The Developer acknowledges that the Discrete Components have been identified for payment purposes only, RVPUBWMUM\682865.1 13 - and that the City (or other applicable public agency that will own a City Facility) shall not accept a City Facility of which a Discrete Component is a part until the entire City Facility has been completed. The City acknowledges that the Discrete Components do not have to be accepted by the City(or other applicable public agency that will own a City Facility) as a condition precedent to the payment of the Purchase Price therefor, but any such payment shall not be made until a Discrete Component has been completed in accordance with the plans therefor. The City shall not be obligated to pay the Purchase Price for any City Facility except from the moneys in the Improvement Fund. (c) Purchase Price. Purchase Price for each City Facility shall be equal to the Actual Cost of such City Facility, but subject to the limitations of this Section 7. Actual Cost means the substantiated cost of a City Facility, as defined in Exhibit E. (d) Payment Requests. In order to receive the Purchase Price for a completed City Facility or Discrete Component, inspection thereof under Section.7(a) shall have been made and the Developer shall deliver to the City Manager or his designee: (i) a Payment Request in the form of Exhibit D hereto for such City Facility or Discrete Component, together with all attachments and exhibits required by this Section 7(d) to be included therewith, and (ii) if payment is requested for a completed City Facility, (a) if the property on which the City Facility is located is not owned by the City (or other applicable public agency that will own such City Facility) at the time of the request, a copy of the recorded documents conveying to the City (or other applicable public agency that will own such City Facility) Acceptable Title to the real property on, in or over which such City Facility is located, as described in Section 8(a) hereof, (b) a copy of the recorded notice of completion of such City Facility filed, (c) to the extent paid for with the proceeds of the Bonds, an assignment to the District of any reimbursements that may RVPUB\MUM\682865.1 14 be payable with respect to the City Facility, such as City or private utility reimbursements, and (d) an assignment of the warranties and guaranties for such City Facility, as described in Section 8(e) hereof, in a form acceptable to the City. (e) Processing Payment Requests. Upon receipt of a Payment Request (and all accompanying documents), the City Manager or his designee shall conduct a review in order to confirm that such request is complete, that such City Facility or Discrete Component identified therein was constructed in accordance with the Plans therefore, and to verify and approve the Actual Cost of such City Facility or Discrete Component specified in such Payment Request. The City Manager or his designee shall_ also conduct such review as is required in his/her discretion to confirm the matters certified in the Payment Request. The Developer agrees to cooperate with the City Manager or his designee in conducting each such review and to provide the City Manager or his designee with such additional information and documentation as is reasonably necessary for the City Manager or his designee to conclude each such review. Within ten (10) business days of receipt of any Payment Request, the City Manager or his designee expects to review the request for completeness and notify the Developer whether such Payment Request is complete, and, if not, what additional documentation must be provided. If such Payment Request is complete, the City Manager or his designee expects to provide a written approval or denial (specifying the reason for any denial) of the request within 30 days of its submittal. If a Payment Request seeking reimbursement for more than one City Facility or Discrete Component is denied, the City Manager or his designee shall state whether the Payment Request is nevertheless approved and complete for any one or more City Facilities or Discrete Component and any such City Facilities or Discrete Component shall be processed for payment under Section 7(f) notwithstanding such partial denial. RVPUB\MUM\682865.1 - 15 (f) Payment. Upon approval of the Payment Request by the City Manager or his designee, the City y Mana r ge or his designee shall sign the Payment Request and forward the same to the Finance Director of the City. Upon receipt of the reviewed and fully signed Payment Request, the Finance Director of the City shall, within the then current City financial accounting payment cycle but in any event within fifteen (15) business days of receipt of the approved Payment Request, cause the same to be paid by the Fiscal Agent under the applicable provisions of the Fiscal Agent Agreement, to the extent of funds then on deposit in the Improvement Fund. Any approved Payment Request not paid due to an insufficiency of funds in the Improvement Fund shall be paid promptly from the Surplus Taxes Fund or from the Improvement Fund promptly following the deposit into the Improvement Fund of proceeds of any investment earnings, Additional Bonds, escrowed funds or other amounts transferred to the Improvement Fund under the terms of the Fiscal Agent Agreement. The Purchase Price paid hereunder for any City Facility or Discrete Component shall constitute payment in full for such City Facility or Discrete Component, including, without limitation, payment for all labor, materials, equipment, tools and services used or incorporated in the work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of such City Facility or Discrete Component as specified in the Plans. (g) Timinij of Requisitions. The City and the Developer acknowledge that (i) to the extent the Developer has constructed and City or other Public Agency has accepted (for payment purposes) certain Public Facilities (including City Facilities) the Developer may submit Payment Requests and JCFA Facilities Payment Request for such Public Facilities for reimbursement for the proceeds from the initial series issuance of the Bonds; (ii) the Developer will be constructing RVPUBNUM\682865.1 16 Public Facilities prior to the issuance of Additional Bonds the proceeds of which will be used to reimburse the Developer for those Public Facilities not funded from the initial series of the Bonds; (iii) the Developer may be submitting Payment Requests and JCFA Facilities Payment Requests to the City in advance of such an issuance of the Additional Bonds, with knowledge that there may be insufficient funds available in the Improvement Fund and the Surplus Taxes Fund for reimbursement; (iv) the Public Facilities that are the subject of the Payment Requests and the JCFA Facilities Payment Requests submitted when there are insufficient proceeds will be inspected and reviewed by the City as set forth in this Agreement and that such Payment Requests and the JCFA Facilities Payment Requests will be reviewed by the City and, if appropriate, approved for payment from the proceeds of the Bonds or the Surplus Taxes Fund; and (v) the payment for any Payment Requests and the JCFA Facilities Payment Requests approved in the preceding manner will be deferred until the date, if any, on which there are amounts in the Improvement Fund or the Surplus Taxes Fund to make all or part of such payment, at which time the City will direct the Fiscal Agent to wire transfer (or pay in another mutually acceptable manner) to the payee identified in such Payment Request or JCFA Facilities Payment Request. The Payment Requests and the JCFA Facilities Payment Requests may be (i) paid in increments as funds become available in the Improvement Fund or the Surplus Taxes Fund, and (ii) paid out of the proceeds of any series of Bonds or special taxes collected in any Improvement Area. The Developer may pay for the Public Facilities prior to the issuance of Bonds or when there are insufficient funds in the Improvement Fund to reimburse the Developer for such payment. Any Public Facilities paid by the Developer shall be made with the understanding that such Public Facilities shall be reimbursed from the proceeds of the Bonds if, and when, Bonds RVPUB\MUM\682865.1 17 are issued or there are otherwise sufficient funds in the applicable Improvement Fund or amounts in the Surplus Taxes Fund. The payment by the Developer- of the costs of Public Facilities prior to the issuance of Bonds or when there are insufficient funds in the Improvement Fund or amounts in the Surplus Taxes Fund to reimburse the Developer for such payment, shall not be construed as a dedication or gift of the Public Facilities, or a waiver of reimbursement of such Public Facilities. (h) Restrictions on Payments. Notwithstanding any other provisions of this Agreement, the following restrictions shall apply to any payments made to the Developer under Sections 7(b) and 7(f) hereof: A. Amounts of Payments. Subject to the following paragraphs of this Section 7(h), payments for each City Facility or Discrete Component will be made only in the amount of the Purchase Price for the respective City Facility or Discrete Component. Nothing herein shall require the City in any event (i) to pay more than the Actual Cost of a City Facility or Discrete Component, or (ii) to make any payment beyond the available funds in the Improvement Fund or the Surplus Taxes Fund. The parties hereto acknowledge and agree that all payments to the Developer for the Purchase Prices of City Facilities or Discrete Component are intended to be reimbursements to the Developer for monies already expended or for immediate payment by the Developer (or directly by the City) to third parties in respect of such City Facilities or Discrete Component. .B. Joint or Third Party Payments. The City may make any payment jointly to the Developer and any mortgagee or trust deed beneficiary, contractor or supplier of materials, as their interests may appear, or solely to any such third party, if the Developer RVPUB\MUM\682865.1 18 so requests the same in writing or as the City otherwise determines such joint or third party payment is necessary to obtain lien releases. C. Withholding Pavments. The City shall be entitled, but shall not be required, to withhold any payment hereunder for a City Facility or Discrete Component if the Developer or any Affiliate is delinquent in the payment of ad valorem real property taxes, special assessments or taxes, or Special Taxes levied in the District. In the event of any such delinquency, the City shall only make payments hereunder directly to contractors or other third parties employed in connection with the construction of the City Facilities or Final Discrete Component or to any assignee of the Developer's interests in this Agreement (and not to the Developer or any Affiliate), until such time as the Developer provides the City Manager with evidence that all such delinquent taxes and assessments have been paid. The City shall withhold final payment for any City Facility or Final Discrete Component constructed on land, until Acceptable Title to such land is conveyed to the City or other Public entity that will own the respective City Facility or other Public Facility, as described in Section 8 hereof. The City shall be entitled to withhold payment for any City Facility or Discrete Component hereunder to be owned by the City until: (i) the City Manager or his designee determines that the City Facility is ready for its intended use, (ii) the Acceptance Date for the City Facility has occurred and to the requirements of Section 8, if applicable to such City Facility or Discrete Component, have been satisfied, (iii) a Notice of Completion executed by the Developer, in a form acceptable to the City Manager or his designee, has been recorded for the City Facility and general lien releases conditioned solely upon RVPUB\MUM\682865.1 19 payment from the proceeds of the Bonds to be used to acquire such City Facility have been submitted to the City Manager for the City Facility. The City hereby agrees that the Developer shall have the right to post or cause the appropriate contractor or subcontractor to post a-bond with the City to indemnify it for any losses sustained by the City because of any liens that may exist at the time of acceptance of such a City Facility, so long as such bond is drawn on an obligor and is otherwise in a form acceptable to the City Manager or his designee. The City shall be entitled to withhold payment of a Public Facility (or the Final Discrete Component or such Public Facility) to be owned by other governmental entities, until the Developer provides the City Manager with evidence that the governmental entity has accepted dedication and/or title to the Public Facility, provided, however that any payment (including progress payments) to the Developer for a Public Facility shall be governed by the JCFA between the Developer and the governmental entity. If the City Manager or his designee determines that a City Facility is not ready for intended use under (i) above, the City Manager or his designee shall so. notify the Developer as soon as reasonably practicable in writing specifying the reason(s) therefor. Nothing in this Agreement shall be deemed to prohibit the Developer from contesting in good faith the validity or amount of any mechanics or materialmans lien nor limit the remedies available to the Developer with respect thereto so long as such delay in performance shall not subject the City Facilities or Discrete Component to foreclosure, forfeiture or sale. In the event that any such lien is contested, the Developer shall only be required to post or cause the delivery of a bond in an amount equal to the amount in RVPUB\MUMM2865.1 20 . dispute with respect to any such contested lien, so long as such bond is drawn on an obligor and is otherwise in a form acceptable to the City Manager or his designee. Nothing in this Section 7(h) shall prevent the payment for Discrete Components as described in Section 7(b). D. Retention. The City shall withhold in the Improvement Fund an amount equal to ten percent (10%) of the Purchase Price of each City Facility or Discrete Component to be paid hereunder. Notwithstanding the foregoing, at such time as one- half of the respective work has been completed and progress on the City Facility or Discrete Component is satisfactory to the City Manager or his designee, no further retention will be made (so that it is expected that, upon completion of any City Facility, a total of ten percent (10%) will have been retained). Any such retention will be released to the Developer upon final completion and acceptance of the related City Facility (or Final Discrete Component thereof). Notwithstanding the foregoing, the Developer shall be entitled to payment of any such retention upon the completion and acceptance of a City Facility, if a maintenance or warranty bond is posted in accordance with Section 8 hereof. Payment of any retention shall also be contingent upon the availability of monies in the Improvement Fund therefore. No retention shall apply if the Developer proves to the City Manager or his designee's satisfaction that the Developer's contracts for the City Facilities or Discrete Component provide for the same retention as herein provided, so that the Purchase Price paid for the City Facility or Discrete Component is at all times net of the required retention. R V PUB\MU W682865.1 21 E. Frequency. Unless otherwise agreed to by the City Manager, no more than one Payment Request shall be submitted by the Developer in any calendar month. (i) Defective or Nonconforming Work. If any of the work done or materials furnished fol'a City Facility are found by the City Manager or his designee to be defective or not in accordance with the applicable Plans: (i) and such finding is made prior to payment for the Purchase Price of such City Facility hereunder, the City may withhold payment therefore until such defect or nonconformance is corrected to the satisfaction of the City Manager or his designee, or (ii) and such finding is made after payment of the Purchase Price of such City Facility, the City and the Developer shall act in accordance with the City's standard specification for City works construction, which are available in the City's Public Works Department. (j) Modification of Discrete Components. The following provisions shall be applicable to each Improvement Area separately. Nothing in this section (j) shall prevent the qualified electors within an Improvement Area from modifying the Facilities and Discrete Components (or other aspects of the Improvement Area) pursuant to the resolution of .consideration provisions of Article 3 of the Act. A. Prior to the Issuance of the First Series of Bonds for an Improvement Area. The City and the Developer acknowledge that (i) the Developer will be constructing City Facilities in advance of the issuance of the first series of Bonds for an Improvement Area, and (ii) this Agreement will be approved and executed in advance of the issuance of the first series of Bonds for an Improvement Area so that the Developer understands how it is to construct the City Facilities to make them eligible for reimbursement from the proceeds of the Bonds. Because this Agreement will be executed prior to the date that the first series of Bonds for an Improvement Area are RVPUB\MUM\682865.1 77 issued, the amount of proceeds of the first series of Bonds cannot be known at this time with any certainty. Consequently, at this time, the description of the City Facilities listed in Exhibit B are preliminary in nature. The City and the Developer agree that Exhibit B may be modified at any time upon the written consent of each party. The City Manager or his designee is hereby delegated the authority to approve any revisions to Exhibit B attached hereto without requiring City Council action. Once such written approval is executed by the City and the Developer, the revised Exhibit B shall be deemed part of this Agreement and shall operate for all purposes thereafter. B. Subsequent to the Issuance of the First Series of Bonds for an Improvement Area. Following the issuance of the first series of Bonds for an Improvement Area, the description of the Discrete Components set forth in Exhibit B for an Improvement Area for which Bonds have been issued shall be modified only as set forth in this subparagraph (B). Upon written request of the Developer, the City Manager shall consider modification of the description of any Discrete Component listed in Exhibit B without further action by the City Council. Any such modification shall be subject to the written approval of the City Manager, and shall not diminish the overall City Facilities to be provided by the Developer hereunder (in a material way such that the change invalidates any of the assumptions used in the appraisal conducted to sell the Bonds). It is expected that any such modification will be solely for purposes of dividing up the work included in any Discrete Component for purposes of acceptance and payment, for example: (i) separation of irrigation and landscaping from other components of a Discrete Component, (ii) modifications to allow for payment for roadway improvements prior to completion of the top course of paving, or (iii) division of utility RV PUB\MUM\682865.1 23 construction by utility work order. In most instances, the City Manager will only approve modifications for payment purposes when there will be an unusual period of time between the completion and acceptance of such divided work or to better implement the phasing of the overall construction of the City Facilities; but no such circumstances shall this subparagraph in any way obligate the City Manager to approve such modification. In addition to the foregoing, the description of the City Facilities and Discrete Components may be modified by adding additional City Facilities in connection with the issuance of any Additional Bonds. Section 8. Ownership and Transfer of Facilities. (a) Facilities to be Owned by the City — Conveyance of Land and Easements to City. Acceptable Title to all property on, in or over which each City Facility to be acquired by the City will be located, shall be deeded over to the City by way of grant deed, quitclaim, or dedication of such property, or easement thereon, if such conveyance of interest is approved by the City as being a sufficient interest therein to permit the City to properly own, operate and maintain such City Facility located therein, thereon or thereover, and to permit the Developer to perform its obligations as set forth in this Agreement. The Developer agrees to assist the City in obtaining such documents as are required to obtain Acceptable Title. Completion of the transfer of title to land shall be accomplished prior to the payment of the Purchase Price for a City Facility (or the Final Discrete Component thereof) and shall be evidenced by recordation of the acceptance thereof by the City Council or the designer thereof. (b) Facilities to be Owned by the City—Title Evidence. Upon the request of the City, the Developer shall furnish to the City a preliminary title report for land with respect to City Facilities to be acquired by the City and not previously dedicated or otherwise conveyed to the RVPUB\MUM\682865.1 - 24 City, for review and approval at least fifteen (15) calendar days prior to the transfer of Acceptable Title of a City Facility to the City. The City shall approve the preliminary title report unless it reveals a matter which, in the judgment of the City, could materially affect the City's use and enjoyment of any part of the property or easement covered by the preliminary title report. In the event the City does not approve the preliminary title report, the City shall not be obligated to accept title to such City Facility or pay the Purchase Price for such City Facility (or the Final Discrete Component thereof) until the Developer has cured such objections to title to the satisfaction of the City. (c) Facilities Constructed on Private Lands. If any City Facilities to be acquired are . located on privately-owned land, the owner thereof shall retain title to the land and the completed City Facilities until acquisition of the City Facilities under Section 7 hereof. Pending the completion of such transfer, the Developer shall not be entitled to receive any payment for any such City Facility or the Final Discrete Component thereof. The Developer shall, however, be entitled to receive payment for the Discrete Components (other than the last Discrete Component) upon making an irrevocable offer of dedication of such land in form and substance acceptable to the City Manager. Notwithstanding the foregoing, upon written request of the City before payment for any Final Discrete Component of such City Facility, the Developer shall convey or cause to be conveyed Acceptable Title thereto in the manner described in Section 8(a) and 8(b) hereof. (d) Facilities Constructed on City Land. If the City Facilities to be acquired are on land owned by the City, the City hereby grants to the Developer a license to enter upon such land for purposes related to the construction (and maintenance pending acquisition) of the City RVPUB\MUM\682865.1 25 Facilities. The provisions for inspection and acceptance of such City Facilities otherwise provided herein shall apply. (e) Public Facilities to be Acquired by Other Public Agencies. The City has, or will, execute Joint Community Facilities Agreements with the School District, MTA, the Sanitation District, Glendora and other local public agencies (collectively the "JCFAs," each individually a "JCFA"). The JCFAs allow the financing of City Facilities. Accordingly, the proceeds of the Bonds in any Improvement Area may be used to pay such Public Facilities at any time, either directly to the applicable agency upon the direction of the Developer, or in reimbursement as discussed herein. Any Public Facilities`paid by the Developer may be eligible for reimbursement from the proceeds of the Bonds. The Developer may request from the proceeds of Bonds for reimbursement or direct payment of Public Facilities that are the subject of the JCFAs by executing and submitting a payment request in the form of Exhibit D attached hereto (the "JCFA Facilities Payment Request"). In the case of a reimbursement for a Public Facility, the Developer shall submit proof of the payment of such Public Facilities, which may be a written confirmation from another agency that such Public Facility has been constructed in accordance with the local agency's policies and inspected by the local agency, and paid for by the Developer ("Proof of Completion .and Payment"). Upon receipt of such JCFA Facilities Payment Request and Proof of Completion and Payment, the City shall review the request and if determined to be an item eligible to be paid from Bond Proceeds direct the Fiscal Agent to wire transfer (or pay in another mutually acceptable manner) to the payee identified in such JCFA Facilities Payment Request such requested funds to the extent of funds on deposit in the Improvement Fund designated by the Developer or the Surplus Taxes Fund. The provisions of Section 7(g) apply to the Public Facilities to be acquired by other local agencies pursuant to the JCFAs. RVPUBUUM\652865.1 26 (f) Maintenance and Warranties. The Developer shall maintain each City Facility and Discrete Components thereof in good and safe condition until the Acceptance Date or until such other time as specified in the applicable JCFA. Prior to the Acceptance Date, the Developer shall be responsible for performing any required maintenance on any completed City Facility and Discrete Components thereof. On or before the Acceptance Date of the City Facility, the Developer shall assign to the City, or other public agency, as applicable, all of the Developer's rights in any warranties, guarantees, maintenance obligations or other evidence of contingent obligations of third persons with respect to such City Facility. The Developer shall provide a warranty bond reasonably acceptable in form and substance to the City Manager for one-year after the Acceptance Date, to insure that defects, which appear within said period will be repaired, replaced, or corrected by the Developer, at its own cost and expense, to the satisfaction of the City Manager. The Developer shall maintain or cause to be maintained each Public Facility and Discrete Components thereof to be owned by another public agency (including the repair and replacement thereof) for the period of time and in the form specified in the applicable JCFA. The Developer shall commence to repair, replace or correct any.such defects within thirty (30) days after written notice thereof by the City to the Developer, and shall complete such repairs, replacement or correction as soon as practicable. After such one-year period, the warranty bond shall be released. From and after the Acceptance Date, the City shall be responsible for maintaining all City Facilities. Any warranties, guarantees or other evidences of contingent obligations of third persons with respect to the City Facilities to be acquired by the City shall be delivered to the City Manager as part of the transfer of title. (g) Discrete Components. Nothing in this Section 8 shall prevent payment for Discrete Components as described in Section 7(b). RVPUBVNUM\682865.1 27 Section 9. Surplus Special Taxes. Pursuant to the Development Agreement dated May 27, 2004, by and between the City and the Developer (the "Development Agreement"), the City shall levy special taxes against developed property within each Improvement Area at 100% of the assigned special tax rate. In addition, the City shall establish in each Fiscal Agent ` Agreement governing the Bonds an interest-eaming "Surplus Taxes Fund" and, in each Fiscal Year, all special tax revenues not needed to pay debt service on the applicable series of Bonds, replenish the reserve fund and pay administrative costs shall be deposited in the appropriate Surplus Taxes Fund. Amounts in each Surplus Taxes Fund shall be used to pay the costs of the construction and acquisition the Public Facilities to the extent that the proceeds of the Bonds are, for any reason, insufficient at the time that a request for payment is made. Section 10. Surplus Bond Proceeds. In the event that any surplus proceeds of the Bonds remain in the Improvement Fund after all of the Public Facilities have been completed, and acquired pursuant to this Agreement, which shall be evidenced by a written notice from the Developer that no additional requisitions for payment will be submitted, said surplus shall be applied to debt service on the Bonds in the manner provided in the Fiscal Agent Agreement. Interest earnings on funds deposited in the.Improvement Fund shall be retained therein and used for the purposes thereof. Section 11. Indemnification: Insurance. Developer shall indemnify and hold harmless the City and the District from any and all claims, actions, liability, damages and costs arising out of Developer's performance of its duties and responsibilities as construction manager. To secure its indemnification obligation, Developer shall obtain and maintain throughout the period of its construction management services a broad form comprehensive liability policy of insurance in a form and with coverages acceptable to the City, having a single aggregate limit of liability as to RVPU13\MUM\682865.1 28 all coverages provided thereby in the amount of $4,000,000, and naming the City, the District and their officers, and employees as additional insureds. Developer shall provide to the City a certified copy of the policy for such insurance or a certificate of such insurance coverage in a form satisfactory to the City. Any such certificate of insurance shall include an�endorsement providing that the City, the District, their officers and employees, and to the extent insurance coverage for such purpose is commercially available, their agents, are additional insureds under the comprehensive general liability policy, and shall provide that the .policy may only be canceled upon 30 days' advance written notice to the City. Developer shall also maintain throughout the period of its construction management services workers' compensation insurance as required by the laws of the State of California. Section 12. Representations, Covenants and Warranties of the Developer. The Developer represents and warrants for the benefit of the City as follows: A. Organization. The Developer is a limited liability company duly organized and validly existing under the laws of the State of Delaware, is in good standing in the State, and has the power and authority to own its properties and assets and to carry.on its business as now being conducted and as now contemplated. B. Authority. The Developer has the power and authority to enter into this Agreement, and has taken all action necessary to cause this Agreement to be executed and delivered, and this Agreement has been duly and validly executed and delivered by the Developer. RVPUB\MUM\682865.1 29 C. Binding Obligation. This Agreement is a legal, valid and binding obligation of the Developer, enforceable against the Developer in accordance with its terms, subject to bankruptcy and other equitable principles. D. Compliance with Laws. The Developer shall not with knowledge commit, suffer or permit any act to be done in, upon or to the lands of the Developer in the District or the City Facilities in violation of any law, ordinance, rule, regulation or order of any governmental authority or any covenant, condition or restriction now or hereafter affecting the lands in the District or the City Facilities. E. Requests foi Payment. The Developer represents and warrants that (i) it will not request payment from the City for the acquisition of any improvements that are not part of the Public Facilities, and (ii) it will diligently follow all procedures set forth in this Agreement with respect to the Payment Requests and the JCFA Facilities Payment Requests. F. Financial Records. Until the final acceptance of the City Facilities, the Developer covenants to maintain proper books of record and account for the construction of the City Facilities and all costs related thereto. Such accounting books shall be maintained in accordance with generally accepted accounting principles, and shall be available for inspection by the City or its agents at any reasonable time during regular business hours on reasonable notice. G. Prevailing Wages. The Developer covenants that, with respect to any contracts or subcontracts for the construction of the City Facilities to be acquired from the Developer hereunder, it will assume complete compliance with any applicable law or regulation for the payment of prevailing wages for such construction. The Developer RVPUB\MUM\682865.1 30 shall be solely responsible for determining whether payment of prevailing wages and other federal and California laws, rules and regulations are applicable for any Public Facility. H. Plans. The Developer represents that it has obtained or will obtain approval of the Plans for the City Facilities to be acquired from the Developer hereunder from all appropriate departments of the City and from any other City entity or City utility from which such approval must be obtained. The Developer further agrees that the City Facilities to be acquired from the Developer hereunder have been or will be constructed in full compliance with such approved plans and specifications and any supplemental agreements (change orders) thereto, as approved in the same manner. I. Land Sales. The Developer agrees that in the event that it sells any land owned by it within the boundaries of the District the Developer will (i) notify the purchaser in writing prior to the closing of any such sale of the existence of this Agreement and the Developer's rights and obligations hereunder with respect to the construction of and payment for the City Facilities, (ii) notify the purchaser in writing of the existence of the District and the special tax lien in connection therewith, and otherwise comply with any applicable provision of Section 53341.5 of the Act, and (iii) notify the City in writing of the sale, indicating the legal description (or County Assessor's parcel number) of the property sold and the purchaser of the property. J. Additional Information. The Developer agrees to cooperate with all reasonable written requests for nonproprietary information by the original purchasers of the Bonds or the City related to the status of construction of improvements within the RVPUBU9UM\682865.1 31 District, the anticipated completion dates for future improvements, and any other matter material to the investment quality of the Bonds. K. Continuing Disclosure. The Developer agrees to comply with all of its obligations under any continuing disclosure agreement executed by it in connection with the offering and sale of any of the Bonds. Section 13, Independent Contractor. In performing. its construction management services, Developer shall be an independent contractor, and this Agreement shall not and does not create a joint venture or partnership between the City and Developer. The City shall have no responsibility or liability for' the payment of any amount to any employee or subcontractor of Developer. Section 14. Special Taxes. The City shall annually thereafter, as appropriate, levy and collect special taxes on that portion of the Property subject to the Special Taxes, in an amount sufficient to pay the principal and interest coming due on the Bonds in each year plus administrative expenses, together with an annual levy for the maintenance portion of the District, if any. For each Improvement Area, such special taxes shall be levied at the rate or rates and in accordance with the Rate and Method of Apportionment of Special Tax relating to the Improvement Area of the District. The City may include in the amount of the annual levy of special taxes on the Property in any year an amount sufficient to replenish the reserve fund for the Bonds of that Improvement Area, the fees associated with the administration of debt service on the Bonds of that Improvement Area, and to pay the City's reasonable administrative expenses in connection with the levy and collection of such Special Taxes within that Improvement Area. Notwithstanding the foregoing and in accordance with the RMA, the City agrees that special taxes shall be levied on Developed Property.(as defined in the RMA) in each RVPU13WUM%682865.1 32 Improvement Area to pay directly for Public Facilities if Bonds secured by such Special Taxes have not previously been issued. Such Special Taxes levied and collected by the City and any prepayment of Special Taxes collected prior to the issuance of Bonds of an Improvement Area shall be held by the City and disbursed to pay the Purchase Price of Public Facilities and, upon the issuance of Bonds, such Special Taxes still held by the City shall be deposited in the Improvement Fund. Section 15. Disclosure of Special Taxes. (a) From and after the date of this Agreement, Developer and its successors and assigns shall give a "Notice of Special Tax" (as defined in Section 15(b) below) to- each prospective purchaser of a parcel in the District and shall deliver a fully executed copy of each notice to District. Developer and its successors and assigns shall (i) maintain records of each Notice of Special Tax for a period of five (5) years, and (ii) shall provide copies of each notice to District promptly following the giving of such notice. Developer and its successors and assigns shall include the Notice of Special Tax in all Developer's and its successors and assigns' applications for Final Subdivision Reports required by the Department of Real Estate ("DRE") which are filed after the effective date of this Agreement. Developer and its successors and assigns shall require, as a condition precedent to close an escrow for the sale of real property to a developer acquiring lots (a "Residential Developer"), that such Residential Developer shall (i) maintain records of each Notice of Special Tax for a period of five (5) years, (ii) provide copies of each notice to District promptly following the giving of such notice, and (iii) include the Notice of Special Tax in all of such Residential Developer's applications for Final Subdivision Reports required by DRE. RVPUB\MUM\652865.1 33 (b) With respect to any parcel, the term "Notice of Special Tax"means a notice in the form prescribed by California Government Code Section 53341.5 which is calculated to disclose to the purchaser thereof(i) that the property being purchased is subject to the special tax of the Improvement Area of the District; (ii) the land use classification of such property; (iii) the maximum annual amount of the special tax and the number of years for which it will be levied; (iv) if available at the time such notice is delivered, an indication of the amount of.special tax to be levied on such property for the following fiscal year; and (v) the types of facilities or services to be paid or with the proceeds of the special tax. (c) District will file with the Los Angeles County Recorder a notice of special tax lien that gives notice of the existence of the District and the levy of the special tax on property within the Improvement Area of the District for the benefit of subsequent Developers, pursuant to requirements of Section 3114.5 of the Streets and Highways Code. (d) Information Sheet and Sample Property Tax Bill. Developer and its successors and assigns shall prepare, in a form reasonably acceptable for the City, and place in their sales office a sample property tax bill which shows (i) the special tax levied for public facilities subject to an annual escalator of 2% and (ii) the special tax levied for public services, subject to an annual escalator of 2%, in a form approved by District. Developer and its successors and assigns shall provide prospective purchasers of homes an information sheet in the sales office in the form set forth in Exhibit F, which is available for such purchasers to take with them. In addition, Developer shall prominently display a notification of Special Tax. Section 16. Termination. If for any reason the City is unable to sell the first series of Bonds (regardless of which Improvement Area), by July 1, 2008, in accordance with this Agreement, this Agreement shall be terminated. RVPUBWUM\692865.1 34 Section 17. Binding on Community Facilities District. The District shall automatically become a party to this Agreement, and all provisions hereof which apply to the City shall also apply to the District. The City Council of the City, acting as the legislative body of the District, shall perform all parts of this Agreement which require performance on the part of the District. Section 18. Assignment. Developer shall not assign this Agreement or any right or obligations hereunder without the express prior written approval of the City. As a condition of such approval, the City may require proof of the financial responsibility and experience of a proposed.assignee to undertake and perform the duties and responsibilities of Developer under this Agreement. The City's approval of an assignment of this Agreement and the rights and duties of Developer hereunder shall not be unreasonably withheld, delayed, or conditioned. Section 19. Prompt Action. All consents, approvals and determinations required of either the City or Developer pursuant to this Agreement shall be promptly given or made, and shall not be unreasonably withheld or conditioned. Section 20. General. This Agreement and the Deposit Agreement contain the entire agreement between the parties with respect to the matters herein provided for. This Agreement may only be amended by a subsequent written agreement signed on behalf of both parties. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties. This Agreement shall be construed and governed by the Constitution and laws of the State of California. Should either party to this Agreement .commence a court action or proceeding against the other party with respect to this Agreement or the design and acquisition or construction of the Public Facilities, the party prevailing in such action or proceeding shall be entitled to receive from the losing party its attorney's fees, expert witness fees, court costs and RVPUBN4UM\682865.1 35 other costs incurred by it in prosecuting or defending such action or proceeding. The captions of the sections of this Agreement are provided for convenience only, and shall not have any bearing on the interpretation of any section hereof. This Agreement may be executed in several counterparts, each of which shall be an original of the same agreement. ` RVPUB\MUM\682865.1 - 36 IN WITNESS WHEREOF, the parties have caused this agreement to be signed as of the date first above written. DEVELOPER AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its: Administrative Member By: C 6 CIA-- Chris /iyChris Gibbs, President CITY OF AZUSA By:t�! -- 7 `!City Manager ATTEST>' -------- era Mendoza / City Clerk RVPUB\MUM%682865.1 37 EXHIBIT A DESCRIPTION OF PUBLIC FACILITIES The Public Facilities that are the subject of the Agreement include those facilities related to the development of the Rosedale Project including both those facilities to be owned, operated and maintained by the City of Azusa (the "City Facilities") and those to be owned, operated and maintained by other local agencies (the"JCFA Facilities"). City Facilities include/t): • Citywide Traffic Facilities in satisfaction of Traffic Mitigation Fee; • Excavation/Grading, Clearing/Grubbing, and Right of Way Acquisition Costs; • Backbone and In-tract Street, Traffic Signal and Bridge Improvements; • Backbone and In-tract Stonn Drain, Sewer, and Water/Reservoir Improvements; • Backbone and In-tract Park & Landscaping Improvements; • Backbone and In-tract Dry Utilities JCFA Facilities includettl: I. Azusa Unified School District("AUSD") Facilities: The fair market value of the School Site; costs to develop the School Site; K-8 School (i.e., a K-8 school to house at least 600 students), which shall include furniture, fixtures and equipment; the School portion of the Great Park, including the fair market value of the land, equipment, landscaping and development; High School facilities (e.g., portable classrooms); High School fees (estimated to be in the amount of $210,651); and any other facility with a useful life of 5 years or more and that will be owned, operated or maintained by the Azusa Unified School District. II. Metropolitan Transportation Authority Facilities: Palm Drive freight rail undercrossing; Citrus Avenue freight rail undercrossing; realignment of the freight rail tracks (including, but not limited to, the cost of the rail, rail hardware, ties, ballast, subballast, embankment fill, drainage leading up to and extending beyond the Palm Drive freight rail undercrossing and the Citrus Avenue freight rail undercrossing); real property costs (at fair market value) for land required to be..purchased, conveyed, dedicated or otherwise transferred to the Metropolitan Transportation Authority for any of the foregoing purposes. The costs associated with the Public Facilities, including: costs incurred by the Developer in preparing the Plans (as defined in Exhibit E) and the related costs of environmental evaluations; fees paid to governmental agencies for obtaining permits, licenses or other governmental approvals for the Public Facilities; a construction and project management fee of five percent(5%) for the construction of the Public Facilities;professional costs incurred by the Developer such as engineering, legal, accounting, inspection, construction staking, materials testing and similar professional services; costs directly related to the construction and/or acquisition of Public Facilities, such as costs of payment,performance and/or maintenance bonds, and insurance costs; and Developer accounting costs associated with the preparation and substantiation of requests for payment under this Agreement. RVPLBVNUM\682865.1 A-1 III. Los Angeles County Sanitation District Facilities: County Sanitation District No. 22 Sanitation Facilities in satisfaction of Connection Fees. IV. City of Glendora Facilities: Citrus Avenue street, bridge, and traffic signal improvements; Sierra Madre water improvements; real property or right of way costs (at fair market value).for land required to be purchased, conveyed, dedicated or otherwise transferred to the City of Glendora for any of the foregoing purposes. Any other facility with a useful life of 5 years or more and that will be owned, operated or maintained by the City of Glendora. RVPUB\MUM\682865.1 A-2 EXHIBIT B DISCRETE COMPONENTS [TO BE PRESENTED BY SUBSEQUENT AMENDMENT TO EXHIBIT PURSUANT TO SECTION 6(C) OF THE FUNDING AND ACQUISITION AGREEMENT] . RVPUB\MUM%82865.1 B-1 EXHIBIT C FORM OF PAYMENT REQUEST City of Azusa Community Facilities District No. 2005-I (Rosedale)- The undersigned, a duly authorized representative of the Developer, hereby requests payment of the Purchase Price of the City Facilities described in Attachment A attached hereto. Capitalized undefined terms shall have the meanings ascribed thereto in the Acquisition Agreement, dated as of August 1, 2005 (the "Acquisition Agreement"), by and between (i) the City of Azusa for the City of Azusa Community Facilities District No. 2005-1 (Rosedale) (the "CFD"), and (ii) Azusa Land Partners, LLC, a Delaware limited liability company (the "Developer"). In connection with this Payment Request, the undersigned hereby represents and warrants to the CFD and the City as follows: (1) He (she) is a duly authorized representative of the Developer, qualified to execute this request for payment on behalf of the Developer and knowledgeable as to the matters set forth herein. (2) Each of the City Facilities described in Attachment A has been completed in accordance with the Acquisition Agreement. (3) The true and correct Actual Cost of the City Facilities for which payment is requested is set forth in Attachment A. (4) Attached hereto are invoices, receipts, worksheets and other evidence of costs which are in sufficient detail to allow the City to verify the Actual Cost of the City Facilities for which payment is requested. (5) There has not been filed with or served upon the Developer notice of any lien, right to lien or attachment upon, or claim affecting the right to receive the payment requested herein which has not been released or will not be released simultaneously with the payment of such obligation, other than materialmen's or mechanics' liens accruing by operation of law. Copies of lien releases for all work for which payment is requested hereunder are attached hereto. (6) The Developer is in compliance with the terms and provisions of the Acquisition Agreement. The Purchase Price for the City Facilities described in Exhibit B shall be payable as follows: $ out of the Improvement Fund created pursuant to the Fiscal Agent Agreement. RVPU13\MUM\682865.1 C-1 $ out of the Surplus Taxes Fund pursuant to the Fiscal Agent Agreement. RVPUB\MUM\682865.1 C-2 - I hereby certify that the above representations and warranties are true and correct. Dated: AZUSA LAND PARTNERS, LLC a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its: Administrative Member By: Chris Gibbs, President By execution of this Payment Request, the City does hereby approve of the payment as described in this Payment Request and directs the Fiscal Agent to pay such amounts, first, from the Improvement Fund and, second from the Surplus Taxes Fund as applicable, to the payee listed above. CITY OF AZUSA for the City of Azusa Community Facilities District No. 2005-1 (Rosedale) By: City Manager RVPUMMUM\682865.1 - C-3 EXHIBIT D FORM OF JCFA FACILITIES PAYMENT REQUEST City of Azusa Community Facilities District No. 2005-1 (Rosedale) (1) City of Azusa Community Facilities District No. 2005-1 (Rosedale) ("CFD") is hereby requested to pay from the CFD bond proceeds to the payee listed below, as Payee, the sum set forth in (3) below: Payee: (2) The undersigned certifies that the amount requested is for the payment of, or reimbursement for, Public Facilities financed through a Joint Community Facilities Agreement, and that such amount has not formed the basis of prior request or payment, and is being made with respect to Public Facilities to be owned or operated by [name of JCFA participant]. (3) Amount requested: $ Description of Facilities: (4) Capitalized terms not defined herein shall have the meaning set forth in the Acquisition Agreement, dated as of August 1, 2005 (the "Acquisition Agreement'), by and between (i) the City of Azusa for the City of Azusa Community Facilities District No. 2005-1 (Rosedale) (the "CFD"), and (ii) Azusa Land Partners, LLC, a Delaware limited liability company(the "developer"). Dated: AZUSA LAND PARTNERS, LLC a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its: Administrative Member By: Chris Gibbs, President By execution of this JCFA Facilities Payment Request, the City does hereby approve of the payment as described in this JCFA Facilities Payment Request and directs the Fiscal Agent to pay such amounts, first, from the Improvement Fund and, second from the Surplus Taxes Fund as applicable, to the payee listed above. CITY OF AZUSA for the City of Azusa Community Facilities District No. 2005-1 (Rosedale) By: City Manager RV PUBW UMW2865.1 D-1 . EXHIBIT E DEFINITIONS The following terms shall have the meanings ascribed to them for purposes of this Agreement. Unless otherwise indicated, any other terms, capitalized or not, when used herein shall have the meanings ascribed to them in the Fiscal Agent Agreemerft (as hereinafter defined). "Acceptable Title" means title to land or interest therein, in form acceptable to the Public Works director, free and clear of all liens, taxes, assessments, leases, easements and encumbrances, whether or not recorded, but subject to any exceptions determined by the Public Works Director as not interfering with the actual or intended use of the land or interest therein. Notwithstanding the foregoing, an irrevocable offer of dedication may constitute land with an "Acceptable Title" if: (i) such offer is necessary to satisfy a condition to a tentative or final parcel map, (ii) such offer is in a form acceptable to the Public Works Director, (iii) the Public Works Director has no reason to believe that such offer of dedication will not be accepted by the applicable public agency, and (iv) the Developer commits in writing not to allow any liens to be imposed on such property prior to its acceptance. "Acceptance Date" means the date the City Council takes final action to accept dedication of or transfer of title to a Public Facility. "Additional Bonds"means any series of Bonds issued by or on behalf of the District after the first series of Bonds, in each case in compliance with and under supplements to the Fiscal Agent Agreement, which Additional Bonds shall be secured on a panty lien or subordinate lien position with other Bonds previously issued within any Improvement Area. "Agreement"means this Acquisition Agreement, together with any Supplement hereto. "Act" means the Mello-Roos Community Facilities Act of 1982, Sections 53311 et seq. of the California Government Code, as amended. "Actual Cost" means the substantiated cost of a City Facility, which costs may include: (i) the costs incurred by the Developer for the construction of such City Facility, (ii) the costs incurred by the Developer in preparing the Plans for such City Facility and the related costs of environmental evaluations of the City Facility, (iii) the fees paid to governmental agencies for obtaining permits, licenses or other governmental approvals for such City Facility, (iv) a construction and project management fee of five percent (5%) of the costs described in clause (i) above incurred for the construction of such City Facility, (v) professional costs incurred by the Developer or the City associated with such City Facility, such as engineering, legal, accounting, inspection, construction staking, materials testing and similar professional services; and (vi) costs directly related to the construction and/or acquisition of a City Facility, such as costs of payment, performance and/or maintenance bonds, and insurance costs (including costs of any title insurance required hereunder). Actual Cost shall not include any cost of carry or interest expense with respect to any construction loan obtained by the Developer with respect to the City Facilities. RVPUB%MUM%82865.1 E-1 "Affiliate" means any person or entity owning an interest of five percent (5%) or more in the Developer. "Discrete Component" means a component of a City Facility that the City Manager has agreed can be separately identified, inspected and completed, and be the subject of a Payment Request hereunder. The Discrete Components of the City Facilities are shown on Exhibit B hereto. The Discrete Components of City Facilities not shown in Exhibit B to be financed from the proceeds of Additional Bonds shall be determined by the City Manager following consultation with the Developer, and shall be identified in a Supplement executed by the parties hereto prior to the issuance of any such Additional Bonds. "Final Discrete Component" means the last Discrete Component of a City Facility to be financed after all other Discrete Components of that City Facility have been paid for from the proceeds of the Bonds. "Fiscal Agent Agreement" means, collectively, any agreement or agreements by that or similar name to be executed by the City, for and on behalf of any one or more of the Improvement Areas of the District, and the Fiscal Agent, which will provide for, among other matters, the issuance of the Bonds and the establishment of an Improvement Fund as originally executed by the City and the Fiscal Agent and as it may be amended from time to time. "Improvement Fund" means the Improvement Fund established by the Fiscal Agent Agreement for any series of Bonds issued on behalf of the District. "Panty Bonds" means additional series of Bonds issued by the City for the CFD in compliance with and under supplements to the Fiscal Agent Agreement, which Bonds shall be secured on a panty lien position with other Bonds previously issued. "Payment Request" means a document, substantially in the form of Exhibit D attached hereto, to be used by the Developer in requesting payment of a Purchase Price for a City Facility. "Plans" means the plans, specifications, schedules and related construction contracts for the City Facilities approved pursuant to the applicable standards of the City when completed and acquired. As of the date of this Acquisition Agreement, the City standards for construction incorporate those set forth in, the Green Book, Standard Specifications for Public Works Construction (SSPWC), of the Southern California Chapter of the American Public Works Association. "Purchase Price" means the amount paid by the City for a City Facility determined in. accordance with Section 7 hereof, being an amount equal to the Actual Cost of such City Facility, but subject to the limitations and reduction's provided for in Section 7. "Supplement" means a written document amending, supplementing or otherwise modifying the Acquisition Agreement and any exhibit thereto, including any amendments to the list of Discrete Components in Exhibit B, and/or the addition to Exhibit B of additional Public Facilities (and Discrete Components) to be financed with proceeds of any Additional Bonds. RVPUB\MUM\682865.1 E-2 I EXHIBIT F CITY OF AZUSA NOTICE OF SPECIAL TAX Community Facilities District No. 2005-1 (Rosedale) 1. WHAT IS COMMUNITY FACILITIES DISTRICT(CFD)No. 2005-1? CFD No. 2005-1 (Rosedale) was formed pursuant to the "Mello-Roos Community Facilities Act of 1982"to finance certain public facilities and services. 2. WHO IS RESPONSIBLE TO PAY THE SPECIAL TAX AND HOW IS IT BILLED? The property owner is responsible for paying the CFD No. 2005-1 (Rosedale) special tax, which will appear as a separate line item on your property tax bill along with your regular property taxes. 3. HOW MUCH WILL MY SPECIAL TAX BE? The special tax is based upon the size of the home. The assigned and maximum special taxes for CFD No. 2005-1 (Rosedale) for the 2005-06 Fiscal Year are summarized below. For Public Facilities (Special Tax A!): :1C xAsslgned w W axlu41 1asslfcalaon Home`Slze ' yl E*'Speclal'sTaz *sal' g Special t •�. S-i_i., sMs2a ."x 'r`rxti r. vA F._ .uki't2: 1 Residential Property . $ /dwelling unit $ /dwelling unit Greater than sq. ft. 2 Residential Property $_/dwelling unit $ /dwelling unit sq. ft. — sq. ft. 3 Residential Property $_/dwelling unit $ /dwelling unit sq. ft. — sq. ft. 4 Residential Property $_/dwelling unit $ /dwelling unit Less than or equal to sq. ft. RVPUB\MUM\682865.1 F-1 For Public Maintenance (Special Tax B): Sr�R'. h�C 5`� Classilication Home Slze r 4s u, S eclahTax r3 hr,k S` ectal Tax Pf,.., .-.,. e.P 1 Residential Property $ /dwelling unit $_/dwelling unit Greater than sq. ft. 2 Residential Property $_/dwelling unit $ /dwelling unit sq. ft. - sq. ft. 3 Residential Property $_/dwelling unit $ /dwelling unit sq. ft. - sq. ft. 4 Residential Property $ /dwelling unit $_/dwelling unit Less than or equal to sq. ft. Special Tax A is subject to a 2% annual escalator. Special Tax B is subject to an annual escalator of 4. HOW LONG WILL I HAVE TO PAY THE CFD NO.2005-1 SPECIAL TAX? The CFD No. 2005-1 collected for public facilities special tax will not be collected after calendar year 20 . The CFD No. 2005-1 special tax collected for public services will be collected in perpetuity or until the City Council determined that.such tax is no longer needed. 5. CAN THE SPECIAL TAXES BE PREPAID? Homeowners have the option of prepaying their CFD No. 2005-1 (Rosedale) Special Tax anytime. Special Tax B cannot be prepaid.. For prepayment information please contact the City of Azusa's CFD No. 2005-1 (Rosedale) administrator, David Taussig & Associates, Inc. at (800) 969-4382. 6. WHERE CAN I GET MORE INFORMATION? For more information in regards to CFD No. 2005-1, contact the City of Azusa's CFD No. 2005-1 (Rosedale) administrator, David Taussig & Associates, Inc. at(800) 969-4382. RVPUB\MUM\682865.1 F-2 U , IAL MEMO CONSENT CALENDAR TO: THE HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JAMES MAKSHANOFF, ASSISTANT CITY MANAGER VIA: F.M. DELACH, CITY MANAGER DATE: JULY 18, 2011 SUBJECT: AZUSA POLICE MANAGEMENT ASSOCIATION CONTRACT- APPROVAL OF TERMS OF THE "MEMORANDUM OF UNDERSTANDING" (MOU) AUGUST 1, 2010 THRU JULY 31, 2015 RECOMMENDATION It is recommended that the City Council approves the terms of the "Memorandum of Understanding". BACKGROUND Beginning last winter, the Azusa Police Management Association, (APMA), and City Administration began negotiations to consider a new contract. After several months of negotiations and good faith bargaining, APMA and the City have reached agreement on a Memorandum of Understanding/contract lasting five years and addressing several areas of concern regarding long range financial impacts on the City..In return for modest salary increases over the term of the new labor contract, the City has received important long term concessions from APMA pertaining to long term pension obligation costs and health care benefits. Before the City Council tonight for review is a summary of the terms for a successor MOU between the City and APMA. Because of the complexities in finalizing the final language to be contained in the MOU, staff plans to bring the finalized MOU document and resolutions to the City Council at the July 25`h, 2011 Utility Board Meeting. Based on the Unit Modification approved on December 6, 2010, the APMA now includes membership of the Sergeants positions, which has increased the membership from 7 to 15 members. The major deal points of the MOU will reduce future City costs in several significant areas while providing long term fiscal stability with concessions in sick leave accumulation, employee contributions to the PERS program, finalizing the establishment of a two-tier retirement program and establishing a uniform base rate for the Flexible Benefit Plan that provides for medical, dental, and supplemental insurances. Additionally this MOU eliminates the Computer and Fitness Loan Program and reduces eligibility for the Tuition Reimbursement Program. A summary of the proposed changes to the current APMA Memorandum of Understanding include: • A second tier retirement program for employees hired after January 1, 2011 under the PERS 3% at age 55 formula. The existing retirement plan for those already employed under the Public Safety Plan will remain 3% at age 50. Additionally new employees will pay 3% of the employee cost of PERS retirement. • A base rate for the Flexible Benefit Plan (Health and Dental) tied to the PERS HMO Kaiser Plan and PPO Dental Plan thereby eliminating the current automatic inflator provision. • Modification of the formula for Sick Leave payout and capping Sick Leave to no more than 1040 hours for new hires. • Elimination of the Computer and Home Exercise Equipment loan Program. • Elimination of the Tuition Reimbursement Program for the positions of Captain and Lieutenant. • Year 1 includes a salary increase of 5% for Sergeants, addressing rank salary compaction, and 2.7% for Lieutenants and Captains that are retroactive to August 1, 2010. • Year 2 includes a 2.25% Cost of Living increase for Sergeants and 2.5% Cost of Living increase for Lieutenants and Captains. Additionally, there is a mid-year 2.5% increase for Sergeant's to further address compaction issues. . • Year 3 includes a 2.5% Cost of Living increase for Sergeants, Lieutenants and Captains. • Year 4 includes a 3.0% Cost of Living increase for Sergeants, Lieutenants and Captains • Year 5 of the MOU includes a 3.5% Cost of Living increase for Sergeants and a 4.0% for Lieutenants and Captains. • In year's 3 and 4, if the CPI increases above 3.5% employees will pay an additional 1% of the employee cost of PERS retirement. • Due to a significant increase in duties and responsibilities, and the personal coverage of a position vacancy, there will be a one-time 5% bonus for the Administrative Services Manager payable upon the approval of the City Council. FISCAL IMPACT The fiscal impact is $61,615 in the first year of the contract. The cost of the new MOU is on average a $76,943 increase per year over the next 4 years. O U � i WRO AWMINNNOM, _ _ _ r'+uFoar:P, CITY OF AZUSA MINUTES OF THE REDEVELOPMENT AGENCY REGULAR MEETING TUESDAY,JULY 5,2011—8:24 P.M. The Board of Directors of the Redevelopment Agency of the City of Azusa met in regular session at the above date and time in the Azusa Auditorium,213 E.Foothill Blvd.,Azusa CA. Chairman Rocha called the meeting to order. Call to Order ROLL CALL Roll Call PRESENT: DIRECTORS: GONZALES,CARRILLO,HANKS,ROCHA ABSENT: DIRECTORS: MACIAS - ALSO PRESENT: Also Present General Counsel Carvalho, Executive Director Delach, Assistant Executive Director Makshanoff, Department Heads,Secretary Mendoza,Deputy Secretary Toscana. AGENCY SCHEDULED ITEMS Sched Items APPROVAL OF ACCEPTANCE AND ASSUMPTION AGREEMENTS BETWEEN THE AZUSA Congregation Ale REDEVELOPMENT AGENCY AND CONGREGATION ALE HOUSE AZUSA CHAPTER LLC House Azusa (TALLEY BUILDING). Moved by Director Gonzales, seconded by Director Carrillo and unanimously* carried to adopt the Agreements agreements between the Azusa Redevelopment Agency("Agency")and Congregation Ale House Azusa Approved Chapter LLC ("Developer") as follows: a. 1) Acceptance and Assumption of Disposition and Development Agreement—To facilitate the transfer to Developer of the Agency's Disposition and Development Agreement("DDA")for the property at 619-621 N.Azusa Avenue("Talley Building")and 2) Congregation Ale House Assumption of Loan Agreement—To permit Developer to assume certain obligations associated with the Agency's original loan to 11 Forno's Restaurant for furniture,fixtures and equipment The CONSENT CALENDAR consisting of items F-I through F-3 was approved by motion of Director Consent Cal. Gonzales,seconded by Director Hanks and unanimously*carried. Approved 1. Minutes of the regular meeting of June 20,2011,were approved as written. Min appvd 2. The Agency Treasurer's Report as of May 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. 11-1132 ALLOWING CERTAIN CLAIMS AND DEMANDS TO BE PAID OUT OF REDEVELOPMENT Warrants AGENCY FUNDS. It was consensus of the Redevelopment Agency Board Members to adjourn. Adjourn TIME OF ADJOURNMENT: 8:26 P.M. SECRETARY NEXT RESOLUTION NO. 11-1133 *Indicates Macias absent. - , WARRANT REGISTER NO, 18 WARRANTS DATED 6/01/11 THROUGH 6/15/11 1 AL YE -11 FOR REDEVELOPMENT AGENCY MEETING OF 7/18/11 RESOLUTION NO. , A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA ALLOWING CERTAIN CLAIMS AND DEMANDS TO BE PAID OUT OF REDEVELOPMENT AGENCY FUNDS THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA DOES RESOLVE AS FOLLOWS: SECTION 1. That the following claims and demands have been audited as required by law and that the same are hereby allowed in the amounts and ordered paid out of the Redevelopment Agency Funds as hereinafter set forth: 80-110-REDEVELOPM ENT ADM INISTRATION FUND S 9,806.50 80-125-CBD CAPITAL PROJECTS FUND 14,943.80 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 2,746.14 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: - $ 27.496 44 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 2011. Chairman I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Redevelopment Agency of the City of Azusa at a regular meeting there of, held on the day of 2011. AYES: AGENCY MEMBERS: NOES: AGENCY MEMBERS: ABSTAIN: AGENCY MEMBERS: ABSENT: AGENCY MEMBERS: Secretary City of A ma HP 9000 07/12/11 O P E N H 0 L D D B. LISTING By Pets a tity Nave Page 1 , JUL, 12, 2011, 4:24 FM ---Yeq: RUBY-------leg: C1, JLr--loc: BI-7DS-I---job: 828624 #J6397---pgn: CFAOO <1.34> Ypt id: C%IFFL 02 SELECT FUND C333es: 80-82 ; Check Issue Dates: 060111-061511 PE ID PE Nam ADCAJST NU49ER / JCB MJ43ER Invoice Nunes Res=pticn St Disc. Ant. Dist. Arrt. V01305 A� CTIY EvKO 8000000000-3035 061511PR#12/11 PD 0.00 350.00 V01305 AZ[� CTIY FMPTD 8000000000-3035 053111 11/11 FD 0.00 350.00 PEID d: 0.00 d: 700.00 Total: 700.00 V10604 AZLTSA MlII'JLE WN 8000000000-3020 2618/1101011 PY#11/11 PD 0.00 35.00 PEID ihux�id: 0.00 Paid: 35.00 Total: 35.00 V06783 CPPISI= 8000000000-3010 2310/1101011PY 11/11 FD 0.00 586.83 V06783 CTIIS= 000000000-3010 1101011 liil ED 0.00 125.08 V06783 CTPTSTRFEP 8000000000-3010 1310/1101011 PY 11/11 FD 0.00 67.00 PEIDUpaid: 0.00 Paid: 978.91 Total: 978.91 V08010 LATIN'S LPIUSCAPI 8010125000-6815 6042 AF=011 SVCS FD 0.00 4,560.00 V08010 DUKE'S LAIZ9IPI 8010125000-6815 . 6044 CLEAN UP 3STREET' PD 0.00 700.00 V08010 DUKE'S LAI\BSWI 8010125000-6815 6043 CLEAN UP 626SAN PD 0.00 400.00 V08010 ='S LANDSCAPI 8010125000-6815 5878 FEB2011 SM7ICES PD 0.00 3,940.00 V08010 LUKE'S LANDSWI 8010125000-6815 5985 M5RCI32011 =C PD 0.00 4,460.00 PEIDd: 0.00 Paid: 14,060.00 Total: . 14,060.00 V00331 FFffi2AL EXPRESS 8010125000-6625 750924401 117052788/J.= PLJ 0.00 20.73 PEID UrWd: 0.00 Paid: 20.73 Total: 20.73 V10322 M & T HANK 8000000000-3010 MP-6/9/11 Defrd Oarp Pbl/P PD 0.00 673.00 V10322 M & T HANK 8000000000-3010 MT-619/11 Dead Ocmp Fbl/P PD 0.00 652.96 PEID d: 0.00 Paid: 1,325.96 C-ity of Aajsa 11P T-E, JUL 112, 20119004:24 gy _07/12/11 O P E N H O L D D B LISTING By �Ehtity � P� 2 req: RUBY-------leg: GL JL---loc: BI-ID;1I---job: 828624 #J6397---pgn: 00 �1.34> rpt id: CHFLTR02 SELECT FUE) CbJes: 80-82 ; Check Issue Dates: 060111-061511 PE ID PE Nage AISSXNT WEER / JCB NUVEER Invoice NLrrber Fescripticn St Disc. Pitt. Dist. Ant. -- Total: 1,325.96 V00540 OFFICE DEFJP INC 8010110000-6530 563462000001 440520 HP 96 BLA PD 0.00 32.50 V00540 OFFICE ISP INC 8010110000-6530 563206356001 466342 AU'*E MN FD 0.00 5.53 V00540 OFFICE DEPOT INC 8010110000-6530 563206356001 381172 SEX S PD 0.00 5.17 PEID Upagd: 0.00 Paid: 43.20 Total: 43.20 V10053 SIS M RAN 8000000000-3044 1221/1101011 PY#11/11 PD 0.00 132.64 PEID I��d: 0.00 Paid: 132.64 Total: 132.64 V11824 URAN FUIU;M IN 8010125000-6345/505800-6345 0511010 REIAIN;INV PD 0.00 863.07 V11824 URBAN FUIURES IN 8010110000-6345/504700-6345 0511010 NII}II Y RETAIIV;INV FD 0.00 666.92 V11824 URBAN FUI RFS IN 8010110000-6345 0511010 NIIF-ILY RETAIN;INV PD 0.00 5,923.87 V11824 LEPAN FUILUM IN 8110155000-6345/505320-6345 0511010 NM� Y RETAIN;INV PD 0.00 2,746.14 PEID UTfgdd: 0.00 Pai : 10,200.00 Total: 10,200.00 GRAND TOTAL d: 0.00 Paid: 27,496.44 lbtal: 27,496.44 ORDINANCE NO. 6 v AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING ZONE CHANGE Z 2009-01, TO CHANGE THE ZONING MAP DESIGNATION OF A PORTION OF LAND FROM DWL (DISTRICT WEST END LIGHT INDUSTRIAL) TO DW (DISTRICT WEST END INDUSTRIAL) WHEREAS, in February 2009, Waste Management submitted an application for a proposed Material Recovery Facility and-Transfer Station ("MRF/TS") for receiving and sorting municipal solid waste, recyclables, and green landscaping waste; and WHEREAS, the Zone Change is part of a package of entitlements, as approval of the MRF/TS requires a number of City actions and entitlements, including approval of this Zone Change, a General Plan Amendment, several variances, a Zoning Code Amendment, and various use permits; and WHEREAS, the Zone Change is required because the Development Code limits a Recycling Facility — Processing Facility such as the MRF/TS to the DW (District West End Industrial) zone with approval of a Use Permit, and a portion of the proposed project site is zoned DWL (District West End Light Industrial) which does not permit a Recycling Facility — Processing Facility. Therefore, in order to approve the proposed MRF/TS, the DWL portion of the project must be changed to DW through a Zone Change; and WHEREAS, the Planning Commission of the City of Azusa, after giving notice thereof as required by law, held a series of public meetings and public hearings on the application of Waste Management with respect to the requested Zone Change Z 2009-01, at which time all persons wishing to testify in connection with the Zone Change were heard and the revision was fully studied, discussed and deliberated; and WHEREAS, the Planning Commission, upon carefully considering all pertinent testimony and the staff report offered in the case as presented at the public hearing, voted to recommend that the City Council approve Zone Change Z 2009-01; and WHEREAS, the City Council of the City of Azusa, after giving notice thereof as required by law, held a public hearing on the application of Waste Management to approve Zone Change Z 2009-01; and WHEREAS, the City Council, after carefully considering all pertinent testimony and the staff report offered in the case as presented at the public hearing, now wishes to approve Zone Change Z 2009-01. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: The above Recitals are true and correct and are incorporated herein by this reference. 4 5635.01817160534711 - SECTION 2: Pursuant to, and in compliance with, the California Environmental Quality Act ("CEQA") (Public Resources Code section 21000 et seq.), a Final Environmental Impact Report has been submitted for concurrent review and certification. In accordance with the Final Environmental Impact Report and resolution for certification of the same submitted concurrently herewith, with the proposed mitigation measures, the proposed project would have significant and unavoidable impacts related to traffic and air quality, which have been considered acceptable by the City Council in accordance with the adoption of a statement of overriding considerations. SECTION 3: That in accordance with Section 88.51.060 of the Azusa Development Code, the City Council hereby approves the proposed Zone change Z 2009- 01 based on the following findings: A. That the proposed amendment is consistent with the goals, policies, and objectives of the General Plan, any applicable specific plan, Owner Participation Agreement or Development Agreement. The proposed Zone Change Amendment, to change the zoning designation of a portion of the project site from DWL (District West End Light Industrial) to DW (District West End Industrial), is consistent with General Plan Land Use Policy 1.2: "Establish land use designation and appropriate density standards and development standards to ensure a balance of land uses and to enhance the City's long term economic and fiscal well-being, including...employment generating industrial businesses." In addition, the project is consistent with General Plan Land Use Policy LU4.8: "Accommodate industrial, manufacturing and supporting commercial use within the West End Industrial District and in accordance with Table CD-2, Land Use Classifications." The proposed project is also consistent with General Plan Land Use Policy LU 6.1: "Accommodate industrial development in accordance with Table CD-2, Land Use Classifications (Industrial)." B. That the proposed zone change will not adversely affect surrounding properties. The proposed zone change will expand a portion of the existing DW zone and reduce the adjacent DWL zone, which will not substantially change the nature of the area nor adversely affect the surrounding industrial properties. SECTION 4: 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. 45635.01817\6053475.1 SECTION 5: This Ordinance shall become effective thirty (30) days after its adoption. SECTION 6: A summary of this ordinance shall be published in the manner required by law. SECTION 7: The City Clerk shall certify to the adoption of this Ordinance. PASSED, APPROVED AND ADOPTED this 18th day of July 2011. JOSEPH R. ROCHA, MAYOR CITY OF AZUSA ATTEST: VERA MENDOZA, CITY CLERK CITY OF AZUSA I Vera Mendoza, City Clerk of the City of Azusa hereby certify that the foregoing Ordinance No 11-0 as duly introduced and placed upon its first reading at a regular meeting of the City Council of the City of Azusa held on the 5th day of July 2011, and that thereafter, said ordinance was duly adopted and passed at a regular meeting of July 18, 2011, by the following vote of the Council: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: VERA MENDOZA, CITY CLERK CITY OF AZUSA APPROVED AS TO FORM: BEST BEST & KRIEGER LLP CITY ATTORNEY 45635.01817\6053475.1 EXHIBIT A CONDITIONS OF APPROVAL 4563 5.01817\6053475.1 Exhibit "A" Final City Council Conditions of Approval 7-5-11 Case No. GPA 2010-01,Z 2009-01, UP 2009-01,ZCA 230, UP 2010-04, UP 2010- 05, V 2010-02, V2010-03, V2010-04, DR 2009-01 Address: 1501 W. Gladstone Street A.P.N.: 8615-007-011 Project: General Plan Amendment to chane a portion of the subject site from General Plan land use designation Recreation/Landfiil Mixed Use to Industrial; Zone Change to change the same area from zoning map classification DWL to DW; Use Permit to allow the proposed Materials Recovery Facility (MRF) and Transfer Station (TS) as a recycling processing facility in the DW zone; Zoning Code Amendment to allow 24 hour operations with a Use Permit in the Industrial zones; Use Permit to allow the 24 hour operation of the MRF/TS; Use Permit to allow a reduction in the provided parking spaces; Variance to allow an increase in perimeter wall height; Variance to allow an increase in the building height; Variance to allow a deviation from operational standards; Design Review for the construction of the MRF/TS. These conditions of .approvalshall be ;printed on or ,attached to working drawings submitted to :the Building Divisionforapproval. A. All requirements of the Planning Division shall be met,including but not limited to the following: 1. The entitlements: the Use Permit to allow the proposed MRF/TS as a recycling processing facility, the Use Permit to allow a 24 hour operation, the Use Permit to allow a parking reduction in parking, the Variance to allow increase in perimeter wall height, the Variance to allow an increase in building height, the Variance to allow a deviation from operational standards, and a Design Review for the construction of the MRF/TS, shall be exercised within 2 years after its approval, or said permit shall expire and be subject to revocation, unless an extension of time is approved in compliance with Section 88.52.040 of the Development Code. The permit shall not be deemed "exercised"until the applicant has obtained a building permit or, has commenced operation of the use, for projects not requiring building permits. 2. The entitlements: the Use Permit to allow the proposed MRF/TS as a recycling processing facility, the Use Permit to allow a 24 hour operation, the Use Permit to allow a parking reduction in parking, the Variance to allow increase in perimeter wall height, the Variance to allow an increase in building height, the Variance to allow a deviation from operational standards, and a Design Review for the construction of the MRF/TS shall not be effective until General Plan Amendment GPA 2010-01, Zoning Code Amendment ZCA 230, and Zone Change Z 2009-01 P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doe have each taken legal effect. In the event any one of GPA 2010-01,ZCA 230,and Z 2009-01 fails to take legal effect, none of the entitlements listed in this condition shall take effect. 3. All applicable Building Division and Fire Department requirements shall be met at all times. 4. All construction and uses shall be in substantial conformance with the approved plot plan and elevations, as modified pursuant to the conditions listed herein. 5. Prior to submitting for Building Division plan check, applicant shall submit a revised plot plan, floor plans,and elevations to the Planning Division for review and approval. The revised plans shall show compliance with all applicable zoning standards and reflect the following conditions: a. At least 79 parking spaces shall be provided and maintained in accordance with Chapter 88.36 (Parking and Loading) of the Development Code. b. At least 2 motorcycle parking spaces shall be provided. C. At least 4 bike racks shall be provided. d. A roof plan showing any roof-mounted equipment. All roof-mounted mechanical equipment shall be screened from public view. e. An elevation and site plan of the roofed and enclosed outdoor temporary bale storage area and a detail of the type of wall or opaque fence enclosure. 6. Chapter 88.34.080 Water Efficient Landscaping of the Azusa Development shall apply to this project if the total landscaped area is equal to or greater than 2,500 square feet. 7. All landscaped areas shall include an automatic irrigation system designed and installed in compliance with Section 88.34.080 Water Efficient Landscaping. 8. Landscaping shall be adequately maintained at all times including,but not limited to, irrigation, weeding, and/or replacement when necessary. 9. Three sets of final Landscape and Irrigation plans shall be submitted to the Planning Division for review and approval, including compliance with the City Water Efficiency Ordinance if applicable. Said plans shall be 24" by 36" and in compliance with the City of Azusa landscape design standards. Location and percentage of landscaping, plant material and quantities of each,plant and planter box size, and design of an automatic irrigation system with detailed cross-sections shall be clearly indicated. (Note: Do not submit these plans with the building plan check. Plans must be submitted directly to the Planning Division. The applicant is made aware that the Parks Division will be routed two sets of plans..Please allow 2- 3 weeks for review.) The number of parkway trees, if any, shall be determined by the Parks Division. 10. The premises shall be maintained in a clean and acceptable condition at all times. All buildings and walls shall be maintained in good repair at all times. Any offensive markings shall be removed immediately.Any graffiti shall be painted over within forty-eight (48) hours to match existing wall in color and tone. 11. All illuminated sign and parking lot lighting shall be located,aimed and/or shielded to prevent lights from shining or reflecting on adjacent property. P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibil—A .doc 12. A Master Sign Plan is required for the project. 13. All signs require separate sign permits, and must comply with those sign regulations set forth in Chapter 88.38 (Signs) of the Development Code to include restrictions on sign area, sign types, sign materials, and sign height. 14. Signs shall not be placed on the public right-of-way. Those projections over the existing or proposed public right-of-way shall meet the State of California Encroachment requirements. 15. Portable signs on the property are prohibited. 16. Temporary signs on the property shall meet all requirements of Chapter 88.38 (Signs) of the Development Code. 17. All handling and storage of hazardous waste, materials, or chemicals shall be in accordance with all applicable State, Federal, or local laws. 18. If it becomes necessary for the City to take any legal action or commence any administrative proceedings against the applicant or any successor in interest in order to enforce any of the conditions of approval set forth herein, the City shall recover from the applicant or successor in interest reasonable attorney's fees and other reasonable costs incurred in such action or proceeding, provided that the City obtains a judgment in its favor in any portion of such action or proceeding. 19. The applicant or successor in interest shall be the real party in interest and shall assume primary responsibility for the defense of any legal action or proceeding commenced against the City to challenge the City's approval of Land Use Entitlements and/or the City's approval related to such land use approval. The applicant or successor in interest shall reimburse the City for all reasonable attorney's fees and other reasonable costs incurred by the City in defending such action or proceeding. 20. By accepting approval of the Land Use Entitlements subject to the conditions set forth herein,the applicant or successor in interest shall be deemed to have agreed to the terms and conditions set forth herein and the City shall have the right to enforce in its sole discretion such terms and conditions by pursuing any and all available legal and equitable remedies. 21. Any changes to the conditions listed herein must be approved by the City Council. 22. All transfer waste trailers shall be covered for transport before leaving the MRF/TS site. 23. In accordance with Chapter 88.39 of the Development Code, the applicant shall select,purchase and install permanent outdoor art at the development site, accessible and visible to the general public from public streets, or pay an in lieu fee,if the total project valuation exceeds $750,000. 24. The outdoor storage area shall be used for the short-term,temporary storage ofbaled recyclable materials only and it shall be roofed and enclosed by a solid wall or opaque fence. The baled,recyclable material must be date-tagged and may only be stored in the designated outdoor storage area for no longer than 96 hours. 25. . The entrance area to the project, designated in the EIR as the Household Hazardous Waste Facility area and the area along Gladstone Street, between the entrance and P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doe the comer of Irwindale Avenue, shall be included in the required landscape plans. New landscaping along the existing block wall and the new block wall, parallel to Gladstone_Street, shall be tall enough to eventually screen the majority of trucks in the queuing area on the access road from of public view. 26. The applicant shall adhere to the City of Azusa Noise Standards regarding daytime and night time noise. 27. There shall be no outside routine operations performed during the hours of 10:00 p.m. and 6:00 p.m. 28. The applicant shall prohibit all municipal solid waste transfer trucks from leaving the MRF/TS facility between the hours of 4:00 pm and 6:00 pm. 29. The applicant shall consider giving precedent to Azusa residents when hiring new personnel, including utilizing such methods as a local job fair. 30. The applicant shall pay a"fair share' amount, to be determined by the City of Azusa City Engineer, of the cost of pavement maintenance on Irwindale Avenue, from the 210 Freeway south to Gladstone Street and on Gladstone Street,from Mira Loma Avenue to Irwindale Avenue, for a period of five years. 31. The applicant shall provide information on CARB and SCAQMD programs regarding Rule 1193. 32. The applicant acknowledges and accepts that these Conditions of Approval are intended to avoid potential nuisance conditions from arising as a result of applicant's operations and therefore, applicant accepts that violations maybe sited in accordance with the City's nuisance regulations and the City's fines and penalties ordinance. B. All requirements of the Recreation and Parks Department.shall be met, including but not limited to the following: 1. Landscape and irrigation plans shall show locations,quantities, sizes and types of plant materials, as well as design of an automatic irrigation system. No final release from this department shall be granted until these plans have been approved. 2. Landscape and irrigation design must comply with all requirements of the City's Water Conservation Ordinance as it relates to AB- 1881 Water Efficient Landscaping. C. All requirements of the Building Division shall be met, including but not limited to the following: 1. Project and plans shall conform to the California Building Standards Code adopted by reference in Section 14-1 .of the Azusa Municipal Code, and all amendments and modification thereto, contained in Chapter 14 of the Azusa Municipal Code. Project and plans shall also conform to the 2010 California Energy Code and the City of Azusa Municipal Code. 2. All plan check fees shall be paid at the time of plan check submittal. Once plan check is completed and approved, applicant shall be responsible to pay in full all other appropriate development fees (i.e. school district fees, water reimbursement, park fees) rip for to issuance of any building roermit 3. Electrical, mechanical, plumbing plan check fees are required. P/Planning/Entitlements/2-Zane Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A Am 4. Energy plan check fees are required. 5. Applicant shall submit 3 copies of foundation, framing, floor and elevation plans for plan check. 6. Structural, architectural, electrical, mechanical, plumbing plans shall be designed by a' State of California Registered Engineer, or a State of California Registered Architect. 7. Applicant shall submit 3 copies of structural calculations simultaneous with the construction plans. 8. Applicant shall submit 3 copies of energy calculations simultaneous with the construction plans. 9. Electrical, mechanical, plumbing plans shall be submitted for plan check simultaneous with the construction plans. 10. Applicant shall submit 3 copies of soil report simultaneous with the construction plans. 11. Prior to issuance of a permit, the applicant shall submit approval from the Los Angeles County Fire Department, and the South Coast Air Quality Management District .(SCAQMD). 12. Plans as submitted are not acceptable for Building Division submittal. 13. Methane study is required to determine if methane mitigation system is needed for all new construction. 14. Special foundation system is required for MRF/TS scale facility or any other structure located over landfill area. 15. Grading, excavation, foundations, slab work, paving,retaining walls and shoring must comply with recommendations of geotechnical investigation report. 16. Shoring plan is required to be submitted to Building Division and Engineering Division for approval prior to excavation for-tunnel area. 17. Grading plan is required to be submitted to the Engineering Division for review and approval prior to permit issuance. 18. Approval from Azusa Light and Water Department is required prior to issuance of permit. 19. Applicant is responsible for submitting all necessary paperwork, forms, plans and obtaining approval from other City Division/Departments and outside agencies that have requirements for project. D. All requirements of the Water Division shall be met, including but not limited to the following: 1. Fire Servicebackflow device(DCDA)location to be set close to the public right-of-way. 2. Will require an approved backflow device for any domestic service. 3. Will require installation of a new water main. 4. Plan Check is required. 5. The owner or project applicant shall take sole responsibility for cost incurred due to any modification;relocation or alteration of existing water facilities caused bythis project to the satisfaction of the Light and Water Department. 6. This project is subject to Ordinance 96-08, City of Azusa Municipal Code Sections 78- 471 through 477 of Division 5 entitled "Water System Development Fee"if there is any P/Pianning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doc change in floor footage. Fees must be paid to the Light and Water Department following the final plan approval by the Building Division. . Fee must be paid to the Light and Water Department following the final plan approval by Building Division. 7. This project is subject to Ordinance No. 07-012, Sections 78-501 through 78-513 of Division 6, entitled "Water Conservation Plan" of Article VI of the City of Azusa Municipal Code. This includes the installation of water saving devices, such as ultra low-flow toilets (1.6 gallons), and participation in the retrofitting of existing housing units either by installing retrofits or providing funds to perform retrofits. 8. The following estimated Water system Development Fee is based on Resolution No.08- 059 and will be changed to reflect the actual rate as of the day fees are paid. Land Use Category: Industrial— 120,896 @ $8681.92/acre. $0.34/SF =$41,104.64 E. All requirements of the Light Division shall be met, including but not limited to the following: 1. Proposed Material Recovery Facility and Transfer Station Recycling Process Facility shall obtain electric utility service from Azusa Light and Water. Method of electric services to the separate facilities shall be determined when building plans are prepared and submitted for approval. 2. Any relocation,modification alteration or replacement of any existing electric facilities shall be at the sole cost and expense of project owner/applicant. Coordinate any relocation work with Azusa Light and Water prior to any approval of building plans. 3. New building facilities shall be served with underground electric service. Project owner/applicant shall make advance arrangements with Azusa Light and Water for the method of underground electric service. All metered electric service entrance main disconnecting means and meters shall be accessible and installed outside the building premises or in a separate enclosed utility room with provision for outside door access. 4. Project applicant and/or property owner shall grant an electric easement for all new electric facilities installed at private property,prior to energizing new, electric service or release of the Certificate of Occupancy. 5. Prior to final approval of the project and before the issuance of the Certificate of Occupancy, the project owner/applicant shall comply with all requirements of Azusa Light and Water. F. All requirements of the Police Department shall be met,including but not limited to the following: 1. Perimeter walls of property facing Irwindale Ave. and Gladstone St. shall be either constructed of material or protected in a manner which will deter graffiti. This condition can be met either by building walls with materials resistant to graffiti paint or by covering exterior facing walls with thorny or vine like plants. 2. Handicapped parking stalls shall marked in compliance with CVC 22511.8 3. Fire lanes shall be marked in compliance with CVC 22500.1 4. A traffic impact study in regards to flow,pattern, controls, etc., shall-be completed and submitted for review by the Azusa_Police Traffic Division. P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doc 5. Applicant shall install strategicallyplaced surveillance cameras that are digitally recorded and stored for at least 30 days for investigative purposes. Moreover, warning signs of such recording(s) shall be conspicuously posted as a crime deterrent. The surveillance system and recordings shall be maintained by Waste Management. 6. Any areas within the property that are identified as having a likelihood of high employee/ visitor pedestrian traffic crossing truck lanes shall have clearly marked pedestrian crosswalks. Theses areas shall also have caution signs indicating potential pedestrian traffic. These areas shall minimally include areas around the offices and pathways leading from the buildings to the proposed pedestrian access points off of Gladstone Street. 7. The exit from the facility off of Mira Loma Ave.,which is proposed as a"right turn only" exit, shall have clear markings both on the ground and on signage that indicates it is a . right tum only exit. 8. In order to minimize potential traffic congestion on Gladstone St.,it is recommended that left turns onto NB Mira Loma Ave. from EB Gladstone St. be prohibited. Ideally, a wedge median would be placed on Gladstone St. to prevent left turns onto Mira Loma Ave. 9. Applicant shall install lighting systems that provide uniformed white light which provide night time vision for vehicles and pedestrians to permit them to see one another,to see risks involved in walking at night and to reduce risk of trip and fall accidents. Moreover, provide lighting systems which will enhance police ability for surveillance and patrol. 10. Applicant shall install lighting systems that provide uniformed white light that minimize glare,light pollution and light trespass. Where necessary,provide light transition zones. 11. . All lighting systems shall be protected from vandalism. (e.g. unbreakable exterior, tamperproof hardware, non-corrosive design components and shock absorbing bracket design). , 12. Ensure that number of proposed parking stalls will be sufficient to accommodate anticipated number of employees and visitors. 13. If the property owner wants illegally parked cars to be towed or cited, the property shall have signs posted in compliance with CVC 22658. G. All requirements of the Fire Department shall be met, including but not limited to the following: 1. SUBMIT FOUR CORRECTED ARCHITECTURAL SETS OF PLANS, FOR FINAL APPROVAL. PLEASE MAKE EACH CORRECTION AS DIRECTED IN EACH REQUIREMENT. 2. A Building Permit WILL NOT be issued prior to acceptance of eh hydrant location, fire flow and any additional requirements by the Department. 3. For questions concerning your project corrections, please contact: Manny Moshrefi, Plans Examiner, at 626-963-5564 between the hours of 7:30 a.m. and 10:30 a.m. only, Monday through Friday. Office meeting by appointment only. 4. Provide a minimum unobstructed width of 26 feet(28 feet for building more than three stories or 35 feet height), except for approved security gates in accordance with Section P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A doe 503.6 and an unobstructed vertical clearance`blear to the sky"Fire Department vehicular access to within 150 feet of all portions of the exterior building walls. Fire Code 503.2.1. Cross hatch the Fire Department vehicle access on the site plan. 5. Dead-end fire apparatus access roads in excess of 150 feet in length shall be provided with an approved Fire Department turnaround. Fire Code 503.2.5 Cross-hatch the Fire Department turnaround on the site plan. 6. o Fire Department vehicular access roads shall be provided with a 32 foot centerline taming radius. Fire Code 503.2.4. Indicate the centerline, inside and outside turning radii for each change in direction on the site plan. 7. Fire Department vehicular access roads must be installed and maintained in a serviceable manner prior to and during the time of construction. Fire Code 501.4. Provide a note on the site plan. 8. A minimum 5 foot wide approved firefighter access walkway leading from the fire apparatus access road to the building exterior openings shall be provided for fire fighting and rescue purposes. Fire Code 504.1. Indicate firefighter walkway access routes on the site plan. 9. Building address numbers shall be provided and maintained so as to be plainly visible and legible from the street fronting the property. The numbers shall be a minimum of 4 inches high with a minimum stroke width of 0.5 inch. Fire Code 505.1. Provide a note on the site plan. 10. A Key Box shall be provided and maintained in accordance with Fire Code 506, and as set forth in Fire Department Regulation 5. Provide a note on the site plan. 11. The required fire flow for PUBLIC fire hydrants at this location is 3500gpm, at 20 psi residual pressure, for a duration of 3 hours over and above maximum daily domestic demand. Fire Code 508.3 and Fire Department Regulation 8. Provide a not on the site plan. 12. The required fire flow for ON-SITE fire hydrants at this location is 1250 gpm at 20 psi residual pressure. When two or more on-site hydrants are required,the fire flow shall be 2500 gpm, with each on-site fire hydrant being capable of flowing 1250 gpm at 20 psi residual pressure. Fire code 508.5.1 and Fire Department Regulation 8. Provide a note on the site plan. 13. Show all existing PUBLIC fire hydrants within 300 feet of the lot frontage on both sides of the street. Specify size of fire hydrant(s) and dimension(s) to property lines. Additional fire hydrant requirements maybe necessary after this information is provided. Fire Code 508.1 and Fire Department Regulation 8. Indicate size and locations of all existing fire hydrants on site plan. 14. The fire hydrant requirements for this project are as follows: Install 3 PUBLIC fire hydrants. Install 6 ON-SITE fire hydrants. Locations: As shown on the site plan. Fire Code 901.4.1 and Fire Department Regulation S. Show new/upgrade/relocated hydrant locations on site plan. 15. All hydrants shall measure 6" x 4" x 2-1/2" brass or bronze, conforming to current American Water Works Association standard C503 or apposed equal, and shall be installed in compliance with Fire Department Regulation 8. Fire Code 508.1.1. All P/Planning/Entitlements/2-Zone Chan.e/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A doe required PUBLIC hydrants shall be installed, tested and accepted prior to beginning. construction. Fire Code 501.4. All on-site fire hydrants shall be installed, tested, and approved prior to building occupancy. Fire Code 901.5.1. Provide a note on the site plan. 16. Provide a receipt, proof of payment, from the water purveyor that shows that all funds have been paid for the installation and/or upgrade of the required public fire hydrants. Provide a letter from she water purveyor or installing contractor that indicates the approximate date the work will be started and completed for the required fire hydrants. 17. Complete and return the required Fire Department"Fire Flow Availability" Form 196. Fire Code 508.1.1 18. Plans showing underground piping of on-site fire hydrants shall be submitted to the Sprinkler Plan Check Unit for review and approval prior to installation. Fire Code 901.2. Provide note on site plan. 19. The inspection, hydrostatic test and flushing of the underground fire protection piping shall be witnessed by an authorized Fire Department representative and no underground piping or thrust blocks shall be covered with earth or hidden from view until the Fire Department representative has been notified and given not less than 48 hours in which to inspect such installations. Fire Code 901.5: Provide a iiote on th'e'site plan. 20. Provide Building Code occupancy classifications for all separate and distinct uses of the structures in accordance with Building code 302.1. Indicate this on the site plan. 21. Provide Building Code type of construction in accordance with Building Code Section 602.1 and Table 601. Indicate type of construction on the site plan and provide construction details for the structural elements in Table 601. 22. The height and area of buildings of different construction types shall be governed by the _ intended use of the building and shall not exceed the limits in Table 503 except for area modifications in Section 506. Incorporate calculations on the site plan. 23. Provide an approved automatic fire sprinkler system as set forth by Building Code 903 and Fire Code 903. Plans shall be submitted to the Sprinkler Plan Check Unit forreview and approval prior to installation. CFC 903.2.3. Provide a note on the site plan. 24. Provide occupant load calculation and exit width analysis for all portions of the building in accordance with Building Code 1004, 1005, Table 1004.1.1 and Table 1005.1. Incorporate calculations on site plan or provide an exit analysis plan. 25. Egress doors shall be readily openable from the egress side without the use of a key or any special knowledge or effort. Building Code 1008.1.8. Provide a note on the site plan. 26. The means of egress travel shall be illuminated at anytime the building is occupied with a light intensity of not less than 1 foot-candle at the walking surface level. Building code 1006.2. Provide a note on the site plan. 27. The power supply for means of egress illumination shall normally be provided for the premises' electrical supply. In the event of power supply failure, the emergency power system shall provide power for a duration of not less than 90 minutes and shall consist of storage batteries,unit equipment or an on-site generator. Building Code 1006.3..Provide a note on the site plan and indicate the light fixtures with emergency power on the P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St- Conditions of Approval/draftCCExhibit—A .doe reflected ceiling plan. 28. Exits, exit access doors and paths of egress travel that are not immediately visible to the occupants shall be marked by an approved exit sign that is readily visible from any direction of egress travel. Exit signs shall be internally or externally illuminated. Building Code 1011. Note: additional exit signs may be required at time of field inspection. Indicate the exit sign locations on floor plan/reflected ceiling plan. 29. Portable fire extinguisher shall be installed in locations as required by Fire Code 906. Provide a not on the site plan. 30. Owner to obtain permit from LOS ANGELES COUNTY FIRE DEPARTMENT if any building or portion of building exceeding 500 square feet is to be used for storage of high piled combustible storage. H. All requirements of the Engineering Division shall be met,including but not limited to the following: General: 1. The contractor shall take every step necessary to contain all dirt,construction materials, and construction run-off on site.No grading or construction-related debris,either directly or indirectly carried.by water, will be permitted to leave the construction site. 2. All work within the Public Right of Way will require application for and issuance of an Encroachment Permit issued by the City of Azusa and the City of Irwindale Public Works Department. All work shall be done in accordance with City of Azusa Standards, City of Irwindale Standards and the latest edition of the Standard Specifications for Public Works Construction and to the satisfaction of the City Engineer or his designee. All work in the public right-of-way shall be completed before issuance of the Certificate of Occupancy. 3. Provide a methane handling.study prepared by a Professional within the discipline. 4. Provide a covenant, agreement and indemnity for the portion of Mira Loma Drive that is used as a portion of the site access. 5. Provide ALTA survey. 6. Obtain demolition permit from the City of Azusa Building Division. 7. Haul route approval and transportation permits required for all construction vehicles from both jurisdictions. Grading: 8. Provide rough and finish grading plans signed by a Registered Civil and Geotechnical Engineer. 9. . Prior to issuance of grading permit, provide verification of fee payment to the County Sanitation Districts of Los Angeles County. 10. Provide ADA access around building in conformance with current codes. 11. Provide Engineering Division with copies of all Environmental site remediation clearances. 12. Provide cross sections of all access roads and N,'S and E/W sections through proposed site. Storm Drainage: P/Planning/Entitlements/2-Zone Chan.e/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doc 13. Submit all drainage plans and hydrology report for approval. 14. Verify after grading operations, construction of walls and buildings, the drainage flows for the project and adjacent properties are clear and unimpeded. 15. Provide drainage acceptance letter and have letter notarized and recorded. 16. Provide covenant and agreement for proposed drainage patterns, acceptance of drainage flows and storm drain facilities that binds the condition to the parcel. Have covenant and agreement notarized and recorded. 17. Prepare easements for proposed facilities and improvements on adjacent property. 18. A construction permit from the State of California Department of Regional Water Quality Board may be required for the project. 19. Provide methodology, shoring and engineering for storm drain piping that will be approximately 30 to 35 feet deep at the project site adjacent to the buildings on the west. 20. Provide detention basin calculations. 21. Provide infiltration and permeability calculations for drainage design and study of materials onsite in order to assure that the ground water will not be affected by infiltration on site in the manner proposed. 22. Storm drain waters will not be allowed to drain over slopes. - 23. Remove onsite storm drain system and plug potential connections to offsite systems. 24. Remove storm drain inlet just north of RR tracks. Sewer: 25. Developer shall clean and video up to 2500 LF of existing sewers that are to receive sewer flow from the project. 26. A sewer study will be prepared that should include a capacity analysis of the existing system from the project to the treatment facility. Note that LACSD requires a capacity review for a permit. 27. The sewer system connections shall be accomplished while maintaining service to the upstream tributary areas. 28. The sewer connections shall be tied into the City of Azusa sewer system on Irwindale Avenue. if other arrangements are required, coordination must take place between the City of Irwindale,the City of Azusa and the LACSD. Gladstone Street has been recently paved within the City of Irwindale and may be inaccessible for sewer connections. Street: 29. Obtain written or stamped approval from the Los Angeles County Fire Department for access and roadways. 30. Traffic control and ramps to be in place for intersections and crossings during construction. Traffic control shall be maintained during construction to provide adequate vehicular and pedestrian access to facilities in the work area. 31. Remove and reconstruct sidewalks as necessary to remove unnecessary parkway improvements, such as curb drains, driveways, etc..that serve the existing use. 32. Reconstruct/repair all damaged pavement areas of Irwindale Avenue, Gladstone Street and Mira Loma Drive to the satisfaction of the City Engineer. 33. Remove existing rails and rail signal equipment from Irwindale Avenue. Coordinate work with the UPRR. P/Plannine/Entitlements/2-Zone Change/2009-01 1500 Gladstone St/Conditions of Approval/dr-aftCCExhibit—A .doc 34. Emergency access driveways shall conform to the City of Azusa standards. 35. Mira Loma drive shall be fully improved. 36. Dedicate remaining portion of Mira Loma Drive to ultimate width. 37. Construct raised medians on Gladstone Street to provide for left turn pockets, control traffic movements and act as a physical barrier between traffic movements and vehicles to the satisfaction of the City Engineer. 38. Raised medians will be constructed in a manner to provide left tum access for S.Duggan Street. 39. Reconstruct concrete paving at the intersection of Gladstone Street and Vincent Avenue in accordance with the County of Los Angeles standards for a concrete intersection. . 40. Provide a TI and R value for Gladstone Street determined by a Registered Geotechnical Engineer. Core street to confirm existing street has a sufficient structural section to handle the increase everyday loading. Reconstruct street to the satisfaction of the City Engineer. 41. Provide sight distance study for Mira Loma Drive to east side and for S. Duggan Street. 42. Provide on street parking perpendicular to the curb on Mira Loma Drive. No parking on the west side of the street. 43. New ADA ramps for the, intersections of Gladstone Street and Vincent Avenue and Gladstone Street and Irwindale Avenue. 44. Provide new sidewalk and curb and gutter on Gladstone Street to the satisfaction of the City Engineer. 45. Minimum radius for curb returns shall be 25 feet. 46. Provide signal modifications and mitigation measures in conformance with the approved traffic study. Update traffic signal equipment to.a 170E controller with battery backup, 100 mph poles,countdown pedestrian heads and new LED ISNS at both of the impacted signalized intersections on Gladstone Street. Environmental: 47. Project must comply with NPDES and any requirements of the State Water Quality Control Board. 48. A registered Civil Engineer must submit SUSMP report, SWPPP, and a detailed list of BMPs for approval prior to or with grading plan. 49. Dust control during the construction is required. Submit plan for approval. 50. Work hours are 7:00 a.m. to 5:00 p.m., Monday through Saturday. No work shall be performed on Sundays or Holidays. 51. Protection of the public,pedestrians, and traffic during above grade construction of the structure is paramount, and full submittal of proposed protection systems for approval is required. I. All requirements of the Community Improvement Division shall be met,including but not limited to the following: 1. Maintain the open space along the north side of Gladstone Street. 2. Trim existing palm tree at the main entrance. 3. Refurbish/repaint the Cemex sign and the Land Reclamation sign. P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doe J. The applicant shall comply with the Mitigation Measures as listed in the MRF/TS EIR and as follows: 1. AES-1 Concurrent with the Demolition Permit Application, a Construction Management Plan shall be submitted for review and approval by the Director of Economic and Community Development. The Construction Management Plan shall, at a minimum, indicate the equipment and vehicle staging areas, stockpiling of materials, fencing(i.e., temporary fencing with opaque material),and haul route. Construction haul routes shall minimize impacts to sensitive uses in the City. The applicant shall implement the construction Management Plan during project construction. 2. TRA-1 Prior to issuance of a Certificate of Occupancy,(estimated to be 1"quarter of 2013),the Applicant shall install, at the intersection of Irwindale Avenue and Gladstone Street,a second (new) southbound left tum lane(at the southbound approach [north leg] of the intersection) and a second (new) westbound right turn lane (for turns from Gladstone Street. to northbound Irwindale Avenue), along with acquiring the land dedication requird. However, should regulatory approvals not be granted by the City of Irwindale by the date of Certificate of Occupancy, the Applicant shall provide funds in an interest bearing dedicated trust account held jointly with the City of Azusa for the future installation of the identified improvements as well as those identified in TRA-2 and TRA-3 (hereinafter referred to as Intersection Improvements). The estimated cost of constructing the improvements at this intersection $248,000.00, which shall be further verified by the time the Certificate of Occupancy is issued and adjusted if necessary by the mutual agreement of the Cities of Azusa and Irwindale, and which shall be placed in trust for use by the City of Irwindale. If the City of Irwindale decides to allow or move forward with the Intersection Improvements and grants,or enters into an agreement with Waste Management or the City of Azusa to grant, all necessary approvals for construction of the Intersection Improvements prior to issuance of a Certificate of Occupancy, the fees and interest collected by the City of Azusa and held in trust shall be provided to the City of Irwindale. In the event that, five years. after the issuance of a Certificate of Occupancy, the City of Irwindale has not opted to implement the Intersection Improvements or has not granted the approvals needed to Waste Management or the City of Azusa.for the Intersection Improvements to move forward, the Applicant shall be reimbursed for some or all of the moneys collected for the Intersection Improvements that have not already been spent. 3. TRA-2 Prior to issuance of a Certificate of Occupancy,the Applicant shall install,at the intersection of Vincent Avenue and Gladstone Street, three landfill driveway approach lanes, a second (new).northbound left turn lane (with protected phasing), a second (new) eastbound left turn lane (with protected phasing), and a new westbound protected left-turn phase, with acquiring the land dedication required. P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doc 4. TRA-3 Prior to issuance of a Certificate of Occupancy, (estimated to be the l't quarter of 2013), the Applicant shall install, at the intersection of Irwindale Avenue and Arrow Highway, a second (new) southbound left turn lane. However, should regulatory approvals not be granted by the City of Irwindale by the date of Certificate of Occupancy, the Applicant shall provide funds in an interest bearing dedicated trust account held jointly with the City of Azusa for the future installation of the identified improvements as well as those identified in TRA-1 and TRA-2 (hereinafter referred to as Intersection m Improvements). The estimated cost of constructing the improvements at this intersection is$203,000.00,which shall be furtber verified by the time the Certificate of Occupancy is issued and adjusted if necessary by the mutual agreement of the Cities of Azusa and Irwindale, and which shall be placed in trust for use by the City of Irwindale. If the City of Irwindale decides to allow or move forward with the Intersection Improvements and grants, or enters into an agreement with Waste Management or the City of Azusa to grant, all necessary approvals for construction of the Intersection Improvements priorto issuance of a Certificate of Occupancy, the fees and interest collected by the City of Azusa and held in trust shall be provided to the City of Irwindale. In the event that, five years after the issuance of a Certificate of Occupancy, the City of Irwindale has not opted to implement the Intersection Improvements or has not granted the approvals needed to Waste Management or the City of Azusa for the Intersection Improvements to move forward,the Applicant shall be reimbursed for some or all of the moneys collected for the Intersection Improvements that have not already been spent. 5. TRA-4 Prior to issuance of a Certificate of Occupancy(estimated to be 1 st quarter of 2013), the project Applicant shall install an adaptive timing control system at the Irwindale Avenue/Gladstone Street and Vincent Avenue/Gladstone Street intersections that is compatible with the planned City of Azusa traffic control system and synchronization program and would interface with other neighboring cities. As part of the compatibility requirement,radio communications equipment shall also be installed at the existing signalized intersections of Irwindale Avenue and Gladstone Street (maintained by the City of Irwindale) and Vincent Avenue and Gladstone Street (maintained by the City of Azusa). However, should regulatory approvals not be granted by the City of Irwindale by the date of Certificate of Occupancy, the Applicant shall provide funds in an interest bearing dedicated trust account held jointly with the City of Azusa for the future installation of the adaptive timing control system at the h-windale Avenue and Gladstone Street intersection. If the City of Irwindale decides to allow or move forward with the adaptive timing control system indicated above and grants, or enters into an agreement with Waste Management or the City of Azusa to grant, all necessary approvals for its installation prior to issuance of a Certificate of Occupancy, the fees and interest collected by the City of Azusa and held in trust shall be provided to the City of Irwindale. In the event that, five,years after the issuance of a Certificate of Occupancy, the City of Irwindale has not opted to implement the adaptive riming control system or has not granted the approvals needed to Waste Management or the City of Azusa for the adaptive timing control system to move forward, the Applicant shall be reimbursed for some or all of P/Plannin.g/Entitletnents/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doe the moneys collected for the adaptive timing control system that have not already been spent. 6. TRA-5 The project Applicant shall coordinate with the California Department of Transportation (Caltrans) prior to issuance of a building permit, to pay its pro-rated fair share for traffic improvement projects to the I-210 eastbound on/off ramps from Irwindale Avenue during the P.M.peak period, and to traffic along I-210. The pro-rated fair share fees shall be based on final project approval, consultation with Caltrans. and consistent with the Methodology for Calculating Equitable Mitigation Measures (Appendix B) of Caltrans' Guide for the Preparation of Traffic Impact Studies (2002). Timing: After issuance of the Conditional Use Permit and at the time that specific highway capital improvement projects for this segment of I-210 or eastbound ramps at h-windale/1- 210 are identified by Caltrans, or Caltrans implements a:specific fair-share mechanism for the capital improvements to the 1-210 eastbound/Irwindale Avenue ramps or mainline segment, whichever occurs first. 7. AQ-1 The following measures shall be implemented during construction to substantially reduce NOX related emissions. They shall be included in the Grading Plan, Building Plans, and specifications. Reductions in particulate emissions shall also be realized from the implementation of these measures as well as AQ-2 and AQ23. • Off-road diesel equipment operators shall be required to shut down their engines rather than idle for more than five minutes, and shall ensure that all off-road equipment is compliant with the CARB in-use off-road diesel vehicle regulation and SCAQMD Rule 2449. • The following note shall be included on all grading.plans: "During construction activity, the contractor shall utilize California Air Resources Board (GARB) Tier 11 certified equipment or better for all on-site construction equipment to meet EPA Tier 2 or higher emissions standards according to the following: - Thru December 31, 2011: All off-road diesel-powered construction equipment greater than 50 hp shall meet Tier 2 off-road emissions standards. In addition, all construction equipment shall be outfitted, with the BACT devices certified by CARB. Any emissions control device used y the contractor shall achieve emissions reductions that are no less than what could be achieved by a Level 2 or Level 3 diesel emissions control strategy for a similarly sized engine as defined by CARB regulations. - January 1, 2012 to December 31, 2014: All off-road diesel powered construction equipment greater than 50 hp shall meet Tier 3 off-road emissions standards. In addition, all construction equipment shall be outfitted with the BACT devices certified by CARB. Any emissions control device used by the contractor shall achieve emissions reductions that are no less than what could be'achieved by a Level 3 diesel emissions control strategy for a similarly sized engine as defined by CARB regulations. - Post-January 1, 2015: If applicable; all off-road diesel-powered construction equipment greater than 50 hp shall meet the Tier 4 emission standards where available and commercially feasible. P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doc A copy of each unit's certified tier specification, BACT documentation, and CARB or SCAQMD operating permit shall be provided to the City at the time of mobilization of each applicable unit of equipment. • The contractor and applicant, if the applicant's equipment is used, shall maintain construction equipment engines by keeping them tuned and regularly serviced to minimize exhaust emissions. • Use low sulfur fuel for stationary construction equipment. This is required by SCAQMD Rules 431.1 and 431.2. • Utilize existing power sources (i.e., power poles) when available. This measure would minimize the use of higher polluting gas or diesel generators. • Configure construction parking to minimize traffic interference. • Minimize obstruction of through-traffic lanes and provide temporary traffic controls such as a flag person during all phases of construction when needed to maintain smooth traffic flow. Construction shall be planned so that lane closures on existing streets are kept to a minimum. • Schedule construction operations affecting traffic for off-peak hours to the best extent when possible. 8. AQ-2 Prior to issuance of any Grading Permit, the City Engineer and the Chief Building Official shall confirm that the Grading Plan,Building Plans and specifications stipulate that, in compliance with South Coast Air Quality Management District Rule 403, excessive fugitive dust emissions shall be controlled by regular watering or other dust prevention measures, as specified in the South Coast Air Quality Management District's Rules and Regulations. In addition, South Coast Air Quality Management District Rule 402 requires implementation of dust suppression techniques to prevent fugitive dust from creating a nuisance off-site. The following measures shall be implemented to reduce short-term fugitive dust impacts on nearby sensitive receptors: • All active portions of the construction site shall be watered to prevent excessive amounts of dust; • On-site vehicle speed shall be limited to 15 miles per hour; • All on-site roads shall be paved as soon as feasible or watered periodically or chemically stabilized; • All material excavated or graded shall be sufficiently watered to prevent excessive amounts of dust; watering, with complete coverage, shall occur at least twice daily, preferably in the late morning and after work is done for the day; • Visible dust beyond the property line which emanates from the project shall be prevented; • All material transported off-site shall be sufficiently watered and securely covered to prevent excessive amounts of dust prior to departing the job site: and • All delivery truck tires shall be watered down and scraped down prior to departing the job site. 9. AQ-3 Prior to the issuance of a building permit, the project applicant shall prepare an implementation program for the City's approval requiring the use of alternative fuel vehicles under the following schedule; and consistent with Rule 1193: P/Plaming/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doc a. Waste Management shall convert into alternative fuel vehicles solid waste collection trucks,and transfer trucks that utilize the Facility and are owned by Waste Management, its subsidiaries, or affiliated enterprises, according to the following phase-in schedule: i. By December 31, 2014, at least 70 percent of 0 aforementioned vehicles shall be alternative fuel vehicles. ii.By December 31,2015, at least 85 percent of all aforementioned vehicles shall be alternative fuel vehicles. iii. By December 31,2016, at least 100 percent of all aforementioned vehicles shall be alternative fuel vehicles. b. For the purpose of complying with this mitigation measure,alternative fuel vehicles shall utilize alternative fuels that are consistent with recommendations or regulations of CARB and SCAQMD, Rule 1193. c. Off-road equipment for on-site operations shall use model 2011 or later diesel equipment that are fully compliant with tier 4 emission standards. The applicant shall implement the implementation plan and submit proof of compliance for each of the milestones listed above by the designated date. 10. AQ-4 Prior to the issuance of a building permit, the project applicant shall prepare an Odor.Management Plan(OMP)pursuant to the requirements of SCAQMD Rule 410 The City Engineer shall verify that the OMP has been approved by the SCAQMD or the Local Enforcement Agency(LEA)or CalRecycle and verify its implementation prior to issuance of certificate of occupancy and during operations.Any odor complaints received shall be sent to the City of Azusa City Engineer. 11. N-1 Prior to Grading Permit issuance,the project shall demonstrate,to the satisfaction of the City of Azusa Community Development Department that the project complies with the following: • Construction contracts specify that all construction equipment, fixed or mobile, shall be equipped with properly operating and maintained mufflers and other State required noise attenuation devices. Prior to issuance of each Grading or Building Permit, the Applicant shall demonstrate to the satisfaction of the City's Building Official how construction noise reduction methods such as shutting off idling equipment, installing temporary acoustic barriers around stationary construction noise sources, maximizing the distance between construction equipment staging areas and occupied residential areas, and electric air compressors and similar power tools, rather than diesel equipment, shall be used where feasible. • During construction, stationary construction equipment shall be placed such that emitted noise is directed away from sensitive noise receivers. 12. N-2 Prior to issuance of building permits an acoustical study shall be prepared and submitted to the City that demonstrates that the MRF/TS offices(e.g.upgraded windows and insulation, etc.)will ensure they will not experience interior noise levels greater than 45 CNEL due to traffic on Gladstone Street. The study shall be prepared by a qualified acoustical engineer and quantify the noise level impacting the building face, the noise reduction provided by the building design, and any upgrades that are required to meet the P/Planningl ntitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A Aoc standard. Any required upgrades shall be incorporated into the architectural drawings for the project. 13. PSU-1 The Applicant shall incorporate safety and security conditions specified by the Azusa Police Department regarding issues including, but not limited to, perimeter walls, parking requirements, fire lanes, traffic specifications, surveillance cameras, lighting systems, and pedestrian crossings. The incorporation of specified conditions in building plans and specifications shall be verified by the Azusa Police Department prior to issuance of a building permit. 14. CUL-1 In the event that cultural resources are exposed during ground-disturbing- activities, round-disturbingactivities, construction activities(e.g., grading,grubbing,or vegetation clearing)shall be halted in the immediate vicinity of the discovery. An archaeologist who meets the Secretary of the Interior's Professional Qualifications Standards(Secretary of the Interior 1983) shall be retained to evaluate the find's significance under CEQA. If the discovery proves to be significant, additional work to preserve the find, such as data recovery excavation, shall be recommended by the archaeologist,in consultation with the Director of Economic and Community Development, and implemented by the Applicant. 15. CUL-2 In the event that any prehistoric, historic, or paleontological resources are discovered during construction-related earth-moving activities,all work within 50 feet of the resources shall be halted and the developer shall consult with a qualified archaeologist or paleontologist to assess the significance of the find. If any finds are determined to be significant by the qualified archaeologist,then representatives from the City of Azusa and the qualified archaeologist and/or paleontologist shall meet to determine the appropriate course of action by the Applicant necessary to recover and preserve the find. 16. CUL-3 If construction activities result in the discovery of human remains during ground disturbances, State of California Health and Safety Code Section 7050.5 shall be implemented. This code section states that no further disturbance shall occur until the County Coroner has made a determination of origin and disposition pursuant to PRC Section 5097.98. The County Coroner shall be notified of the find immediately. If the human remains are determined to be prehistoric, the Coroner shall notify the Native American Heritage Commission, which shall determine and notify a Most Likely Descendant (MLD). The MLD shall complete the inspection of the site within 48 hours of notification and may recommend scientific removal and nondestructive analysis of human remains and items associated with Native American burials. Such human remains and associated items will be treated as recommended by the MLD. 17. HAZ-1 Prior to demolition and/or rehabilitation activities, an asbestos survey shall be conducted by an Asbestos Hazard Emergency Response Act (AHERA) and Cal OSHA certified building inspector to determine the presence or absence of asbestos containing-materials (ACMs). If ACMs are located, abatement of asbestos shall be completed prior to any activities that would disturb ACMs or create an airborne asbestos hazard. Asbestos removal shall be performed by a State certified asbestos containment contractor in accordance with the South Coast Air Quality Management District (SCAQMD) Rule 1403. P/Planning/Entitlements/2-Zone Chan,e/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doc 18. HAZ-2 If paint is separated from building materials (chemically or physically) during demolition of the structures,the paint waste shall be evaluated independently from the building material by a qualified Environmental Professional. If lead-based paint is found, abatement shall be completed by a qualified Lead Specialist prior to any activities that would create lead dust or fume hazard. Lead-based paint removal and disposal-shall be performed in accordance with California Code of Regulation Title 8, Section 1532.1, which specifies exposure limits, exposure monitoring and respiratory protection, and mandates good worker practices by workers exposed to lead. Contractors performing lead-based paint removal shall provide evidence of abatement activities to the City Project Engineer. 19. HAZ-3 Prior to issuance of a grading permit,the Applicant shall determine whether or not underground storage tanks (USTs) are present within the western portion of the project site. Should USTs be present on-site, the Applicant shall obtain appropriate permits from the County of Los Angeles Department of Public Works and County of Los Angeles Health Hazardous Materials Division,per the Environmental Programs Division and the Underground Storage Tank and remove the UST's. UST closure by removal shall comply with the closure conditions as directed on the closure Permit as well as meet .the requirements of California Health and Safety Code Division 20, chapter 6.7, section 25298, California code of Regulations title 23, division 3, Chapter 16, Sections 2670 through 2672 and the Los Angeles County Code. The Applicant shall conduct soil/groundwater testing, as requested by the Health Hazardous Materials Division. Should the Health Hazardous Materials Division refer the case to any other regulatory agency (e.g. the Department of Toxic Substances Control or Regional Water Quality Control Board, etc.) then the Applicant shall comply with that said agency as well. 20. HAZ-4 If groundwater is encountered during construction, sampling shall be conducted by a qualified hazardous materials specialist with Phase II/Site Characterization experience in order to ensure that worker safety is not compromised.In the event that groundwater contamination is above acceptable regulatory thresholds,than the Applicant shall prepare and implement a Worker Safety Plan, approved by the County of Los Angeles Health Hazardous Materials Division, that outlines safety precautions (e.g., utilization of protection equipment, specific training prior to commencing work, verification of safety requirements during construction, etc.) that minimize potential exposure to workers. 21. HAZ-5 If unknown wastes or suspect materials are discovered during construction by the contractor that are believed to involve hazardous waste or materials,the contractor shall comply with the following: • Immediately cease work in the vicinity of the suspected contaminant, and remove workers and the public from the area; • Notify the City Engineer of the City of Azusa; • Secure the area as directed by the City Engineer; and • Notify the County of Los Angeles Health Hazardous Materials Division's Hazardous Waste/Materials Coordinator(or other appropriate agency specified by the County of Los Angeles Health Hazardous Materials Division). The Hazardous P/Planninu/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draft=xhibit—A .doe Waste/Materials Coordinator shall advise the responsible party of fiuther actions that shall be taken, if required, and the applicant will implement all fiuther actions so specified.. 22. HAZ-6 Prior to issuance of a grading permit, the Applicant shall demonstrate compliance with land use regulations specified by CalRecycle in Title 27, Division 2, Chapter 3, Subchapter 5, Article 2, Section 21190, California Integrated Waste Management Board—Postclosure Land Use standards as follows: All on-site construction within 1,000 feet of the boundary of any disposal area shall be designed and constructed in accordance with the following,or in accordance with an equivalent design which will prevent gas migration into the building, unless an exemption has been issued: -A geomembrane or equivalent system with low permeability to landfill gas shall be installed between the concrete floor slab of the building and subgrade; - A permeable layer of open graded material of clean aggregate with a minimum thickness of 12 inches shall be installed between the geomembrane and the subgrade or slab; - A geotextile filter shall be utilized to prevent the introduction of fines into the permeable layer; -Perforated venting pipes shall be installed within the permeable layer, and shall be designed to operate without clogging; - The venting pipe shall be constructed with the ability to be connected to an induced draft exhaust system; -Automatic methane gas sensors shall be installed within the permeable gas layer, and inside the building to trigger an audible alarm when methane gas concentrations are detected; and - Periodic methane gas monitoring shall be conducted inside all buildings and underground utilities. 23. HWQ-1 Prior to Grading Permit issuance and as part of the project's compliance with the NPDES requirements, a Notice of Intent(NOI)shall be prepared and submitted to the Los Angeles County Regional Water Quality Board (wm), providing notification and intent to comply with the State of California General Permit. 24. HWQ-2 The proposed project shall conform to, and implement,the requirements of an approved Storm Water Pollution Prevention Plan (SWPPP) (to be applied for during the Grading Plan process) and the NPDES Permit for General Construction Activities No. CAS000002, Order No, 2009-0009-DWQ, including implementation of all recommended Best Management Practices (BMPs), as approved by the State Water Resources Quality Control Board(SWRCB). 25. HWQ-3 . The potential Best Management Practices (BMPs)outlined in Section 5.0 of the Hydrology and Water Quality Technical Study for the Waste Management Material Recovery Facility, Transfer Station, and Household Hazardous Waste Facility prepared by RBF Consulting (October 2010), shall be considered for inclusion in the project's Storm Water Pollution Prevention Plan (SWPPP)to the extent necessary to comply with the NPDES Permit for General Construction Activities No. CAS000002, Order No. P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doc 2009-0009-DWQ. All BMP's included in the SWPPP shall be implemented by the applicant. 26. WQ-4 In order to ensure the proposed project would not impact existing drainage facilities (i.e., Arrowdale Drain) serving the project site, the Applicant shall prepare a detailed design report that demonstrate the following prior to the issuance of grading permits, to be reviewed and approved by the Los Angeles County Public Works Department and the City Engineer: • Post-development peak storm water run-off discharge rates shall be mitigated to the existing conditions capacity (current design capacity, as analyzed in the 2007 Irwindale Master Hydrology Study)of the downstream Arrowdale Drain utilizing an on-site detention /retention basin(s); • All storm drain facilities, excluding detention basins,shall be designed for 25-year storm event protection; and • Detention facilities shall be designed for 50-year storm event protection. The approved drainage facility design report shall be implemented by the applicant. 27. HWQ-5 The project Applicant shall prepare and implement a site-specific Standard Urban Stormwater Mitigation Plan (SUSMP) for the proposed project. Requirements for commercial/institutional developments(including the proposed project) include the following to be implemented by the Applicant and enforced by the City of Azusa Public Works Department: • Post-development peak storm discharge rates shall not exceed the estimated pre- development rate for developments where increased peak storm water discharge rates will result in increased potential for downstream erosion. • _ Conserve natural areas by using cluster development,limiting clearing and grading of native vegetation, maximize trees and other vegetation, promote natural vegetation, and preserve riparian area and wetlands. • Minimize storm water pollutants of concern by incorporating Best Management Practices(BMPs)or combinations ofBMPs best suited to maximize the reduction of pollutant loadings in run-off to the maximum extent practicable. • Protect slopes and channels to decrease the potential of slopes and channels from eroding and impacting storm water run-off: • Provide storm water drain system stenciling and signage. • Properly design outdoor material storage. • Properly design trash storage areas. • Proper proof of ongoing BMP maintenance. • Comply with SUSMP standards for design of structural or treatment control BMP's. - Bioretention Basins - Infiltration Trench/Basin - Irrigation Retention - Extended Detention Basins - Vegetated Swales/Strips - Media filters - Or other approved treatment control BMP's P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit-A .doe Properly design loading/unloading dock areas. Properly design repair/maintenance bays. Properly design vehicle/equipment wash areas. Design parking areas to reduce impervious land coverage,infiltrate run-off,and treat run-off before it enters the storm drain system. 28. GEO-1 The project shall incorporate and implement all engineering recommendations contained within the Geotechnical Investigation for the Proposed- Material Recovery Facility, Transfer Station, and Entrance Improvements, prepared by. Geocon West, Inc., dated May 17, 2010, during project site design, construction, and operations to reduce any potential geotechnical hazards at the project,site. These recommendations shall be stipulated in the construction contracts and specifications. The Geotechnical Investigation is included in Appendix 15.11, Geotechnicallnvestigation;of this EIR and is incorporated by reference into this mitigation measure. P/Planning/Entitlements/2-Zone Change/2009-01 1500 Gladstone St./Conditions of Approval/draftCCExhibit—A .doc ORDINANCE NO. l� AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA APPROVING ZONING CODE AMENDMENT ZCA 230, ALLOWING OPERATING HOURS BETWEEN 9:00 P.M. AND 7:00 A.M. IN THE DW AND DWL ZONES WITH A USE PERMIT. WHEREAS, California Government Code, Section 65800 et seq.authorizes the adoption and administration of zoning laws, ordinances, rules and regulations by cities as a means of implementing the General Plan; and WHEREAS, on February 22, 2005, the City Council adopted the new Development Code with the understanding that the"Form-Based Code"format included wholesale changes to the prior Code, and that revisions would be necessary after the new Code was implemented; and WHEREAS, the Planning Commission of the City of Azusa, after giving notice thereof as required by law, held a series of public meetings and public hearings on a proposed revision to the Development-Code,which would allow operating hours between 9:00 p.m. and 7:00 a.m. in the DW and DWL Zones with a use permit, at which time all persons wishing to testify in connection with the proposed revision to the Development Code were heard and the revision was fully studied, discussed and deliberated; and WHEREAS, the Planning Commission, upon carefully considering all pertinent testimony and the staff report offered in the case as presented at the public hearing, voted to recommend that the City Council approve Zoning Code Amendment ZCA 230; and WHEREAS,the City Council of the City of Azusa,after giving notice thereof as required by law,held a public hearing on Zoning Code Amendment ZCA 230,at which time all persons wishing to testify in connection with the amendment to the Development Code were heard,and the proposed amendment and public testimony were fully studied, discussed, and deliberated; and WHEREAS,the City Council,after carefully considering all pertinent testimony and the staff report offered in the case as presented at the public hearing, now wishes to approve Zone Change Z 2009-01. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: The above Recitals are true and correct and are incorporated herein by this reference. SECTION 2: Pursuant to, and in compliance with,the California Environmental Quality Act ("CEQA")(Public Resources Code section 21000 et seq.), a Final Environmental Impact Report has been submitted for concurrent review and certification. In accordance with the Final Environmental Impact Report and resolution for certification of the same submitted concurrently herewith,with the proposed mitigation measures,the proposed project would have significant and unavoidable impacts U:1MRF Resolutions and Ordinances\AZUSA_MRF ZCA 230 Council Ordinance.DOC 45635.01817\6053474.1 1 related to traffic and air quality, which have been considered acceptable by the City Council in accordance with the adoption of a statement of overriding considerations. SECTION 3: That in accordance with Section 88.51.060 of the Azusa Development Code, the City Council hereby approves Zoning Code Amendment ZCA 230 based on the following findings: A. That the proposed amendment is consistent with the goals,policies,and objectives of the General Plan, any applicable specific plan, Owner Participation Agreement or Development Agreement. The proposed Zoning Code Amendment, to allow the operation of an industrial business between the hours of 10:00 p.m. and 7:00 a.m. with approval of a Use Permit by the Planning Commission, is consistent with the General Plan. There is no applicable specific plan. The General Plan Chapter 4: Economy and Community Goal No. 1 is to"Build and maintain a strong, diverse economy in Azusa", and EC Policy 1:2 calls for the maintenance of"a business climate in Azusa that communicates the city's support for businesses." The proposed Zoning Code Amendment would provide a way for industrial businesses to apply for a Use Permit to allow them to work beyond the standard 7:00 a.m. — 10:00 p.m., as appropriate to their particular location and operating characteristics,and would meet the goals and policies of the General Plan. The proposed project is also consistent with General Plan Land Use Policy LU 4,8, which seeks to"Accommodate industrial,manufacturing and supporting commercial use within the West End Industrial District and in accordance with Table CD-2,Land Use Classifications" in that it would allow such desired uses within the District. B. That the proposed Zoning Code Amendment will not adversely affect surrounding properties. The proposed Zoning Code Amendment will allow industrial businesses the opportunity to apply for a Use Permit in order to expand their hours of operation with the flexibility needed to be competitive. The Use Permit process would allow the Planning Commission to review each application for extended hours of operation in the industrial zones, in order to determine if the proposed extended hours are compatible with surrounding properties. The Use Permit process would also allow the Planning Commission to impose conditions on applicants to ensure compatibility with surrounding properties. SECTION 4: Based on the Staff Report, all written and oral comments and testimony presented to the City Council,and the aforementioned findings,the City Council does hereby adopt the amendment to the Development Code, as set forth in the attached Exhibit"A"to this Ordinance. SECTION 5: 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 45635.01817\6D53474.1 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 6: This Ordinance shall become effective thirty (30) days after its adoption. SECTION 7: A summary of this ordinance shall be published in the manner required by law. SECTION 8: The City Clerk shall certify to the adoption of this Ordinance. PASSED, APPROVED AND ADOPTED this 18th day of July 2011. JOSEPH R. ROCHA, MAYOR CITY OF AZUSA ATTEST: VERA MENDOZA, CITY CLERK CITY OF AZUSA I Vera Mendoza, City Clerk of the City of Azusa hereby certify that the foregoing Ordinance No I I- O as duly introduced and placed upon its first reading at a regular meeting of the City Council of the City of Azusa held on the 5`h day of July 2011, and that thereafter, said ordinance was duly adopted and passed at a regular meeting of July 18, 2011, by the following vote of the Council: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: VERA MENDOZA, CITY CLERK CITY OF AZUSA APPROVED AS TO FORM: BEST BEST & KRIEGER LLP CITY ATTORNEY 45635.0]8]7\6053474.1 EXHIBIT A DEVELOPMENT CODE REVISION Chapter 88.24 DISTRICTS — 88.24.005. Allowable Uses in Districts, A. Permit Requirements: TABLE 2-2 P Permitted Use,Zoning Clearance required Allowed Land Uses and Permit Requirements MUP Minor Use Permit required for Districts UP Use Permit required S Permit requirement set by Specific Use Regulations — Use not allowed - LAND USE TYPE(1) PERMIT REQUIRED BY ZONE Specific Use DTC DCC DTV DE DW DWL Regulations AGRICULTURAL AND RESOURCE-BASED USES Plant nursery MUP(6) MUP(6) MUP(6) I MUP(6) I MUP(6) I MUP(6) Surface mining operations — — — - — I UP I UP 188.44 INDUSTRY,MANUFACTURING& PROCESSING,WHOLESALING Laboratory-Medical,analytical — — P P Construction contractor — — — — MUP MUP Manufacturing/processing-Heavy(3) — — — — MUP MUP Within 1,000 feet of residential use — — — — UP Existing forging and stamping use — — — — - UP UP Manufacturing/processing-Light — — — — P P Manufacturing/processing-Medium intensity(3) — — — — P P Within 500 feet of residential use — — — — I MUP I MUP Media production P P Recycling-Large collection facility — — P MUP 88.42.170 Recycling-Processing facility(3) — — — — UP — 88.42.170 Recycling-Reverse vending machine — — — P p P 88.42.170 Recycling-Small collection facility - — — MUP P P 88.42.170 Research and development(3) Scrap and dismantling yard — — — — Storage-Outdoor — — — — MUP MUP Storage-Personal storage facility(mini-storage) — — — — - MUP MUP Oaeratine between 9:00 um and 7:00 am UP UP hour: (n A definition of each listed use type is in Article (Glossary). RI Allowed on a second or upper aoar only. _ (3) This is a critical,sensitive or high ooc.panry facility,object to the barard mitigmion ser, iremusts of section 68.30.030. (4) Allowed only in the area designated"recremi.mhudfill mined use"by be austral plan. - (5) Allowed only in the area designated"hotellonf refer center'by the general plan. (6) Allowed only within the boundaries of an electric utility easement for high voluge transmission lines. Key to Zone symbols DTC Downtown -Town Center DE Edgewood District DCC Downtown-Civic Center DW West End Industrial District DTV Downtown-Transit Village DWL West End Light Industrial District - 45635.01 917\6053474.1 ORDINANCE NO. I (PAN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ZUSA APPROVING A DEVELOPMENT AGREEMENT FOR E CONSTRUCTION AND OPERATION OF A MATERIAL RECOVERY FACILITY AND TRANSFER STATION, LOCATED AT 1501 W. GLADSTONE STREET WHEREAS, in February 2009, Waste Management submitted an application for a proposed Material Recovery Facility and Transfer Station ("MRF/TS") for receiving and sorting municipal solid waste, recyclables, and green landscaping waste; and WHEREAS, the Development Agreement is part of a package of entitlements, as approval of the MRF/TS requires a number of.City actions and entitlements, including approval of a Zone Change and General Plan Amendment, a Zoning Code Amendment, various use permits, several variances, and the Development Agreement; and WHEREAS, the Development Agreement will secure benefits. to the City, including a host fee of $1.60 per ton for all waste material delivered to the station, --processed,2 and.transferred out; and 1. WHEREAS, the Planning Commission of the City of Azusa, after giving notice thereof as required by law, held a series of public meetings and public hearings on the application of Waste Management with respect to the requested Development Agreement, at which time all persons wishing to testify in connection with the Development Agreement were heard and the revision was fully studied, discussed and deliberated; and WHEREAS, the Planning Commission, upon carefully considering all pertinent testimony and the staff report offered in the case as presented at the public hearing, voted to recommend that the City Council approve the Development Agreement ; and WHEREAS, the City Council of the City of Azusa, after giving notice thereof as required by law, held a public hearing on the application of Waste Management to approve the Development Agreement; and WHEREAS, the City Council, after carefully considering all pertinent testimony and the staff report offered in the case as presented at the public hearing, now wishes to approve the Development Agreement. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: The above Recitals are true and correct and are incorporated herein by this reference. SECTION 2: Pursuant to, and in compliance with, the California Environmental Quality Act ("CEQA") (Public Resources Code section 21000 et seq.), a Final Environmental. Impact Report has been submitted for concurrent review and certification. In accordance with the Final Environmental Impact Report and resolution for 45635.018 17\6053448.1 certification of the same submitted concurrently herewith, with the proposed mitigation measures, the proposed project would have significant and unavoidable impacts related to traffic and air quality, which have been considered acceptable by the City Council in accordance with the adoption of a statement of overriding considerations. SECTION 3: That in accordance with Section 88.53.030 of the Azusa Development Code, the City Council hereby approves the proposed Development Agreement based on the following findings: A. That the proposed Development Agreement is consistenVwith the goals, policies, and objectives of the General Plan. The proposed Development Agreement is consistent with General Plan Chapter 4: Economy and Community Goal 1: "Build and maintain a strong, diverse economy in Azusa," and Goal 9: "Create a diverse and balanced revenue base with long-term value, avoiding excess reliance on a single revenue resource." The project will add a new and different revenue stream to the economy of Azusa. It will also provide a long-term revenue stream that will enhance Azusa's economic health and quality of life. The proposed Development Agreement is also consistent with General Plan Chapter 4: Economy and Community Goal 4: "Support the creation of high-quality jobs for relatively low skill levels." The MRF/Transfer Station will create approximately 62 new jobs of varying skill levels. The proposed project is also consistent with the General Plan as illustrated in the table below. rhv m i %s ah' it. 5ks 4 Y" i 'v W5 Vt` -y*-Y'»r 7 2.'V9w.^3r' l Yn d W a'+ a-;Uenera� IC^`Ons StQnCy Y,7 LU Land Use (LU) LU4.8 Accommodate industrial, Consistent. The project proposes an manufacturing and supporting industrial development (i.e., the MRF/TS) commercial use within the West End within the District. Industrial District and in accordance with Table CD-2, Land Use Classifications. LU4.9 Require buildings within the West End Consistent. Pursuant to Azusa Industrial District to be uniquely Development Code Section 88.51.032, identifiable, distinguished , in their Design Review, the proposed project architecture and site planning, and would be subject to Design Review, in compatible with adjacent uses and order.to ensure that the proposed uses and districts. structures enhance their sites with the highest standards of improvement and are compatible with the surrounding land uses. Namely, the industrial.uses located to the north, east, and west in the City of Azusa, and the industrial uses located to the south in the City of Irwindale. Design Review would also ensure that the ro osed development complies with all 45635.01817\6053448.1 applicable Azusa Development Code standards ,and regulations, and Azusa General Plan Policies, and does not adversely affect community health, safety, aesthetics, or natural resources. Additionally, it is noted land use compatibility impacts associated with land development involve quality of life issues, including aesthetics, traffic, and noise, among others. While these may generally be perceived as subjective issues, the significance criteria detailed in each of the respective EIR issues sections provides a basis for assessing land use compatibility impacts. Quality of life issues are analyzed in EIR Section 5.2, Aesthetics/Light and Glare, Section 5.3, Traffic and Circulation, and Section 5.6, Noise. Further, the project would involve Use Permits and Variances, subjecting the proposed development to further discretionary review by the City Staff, Planning Commission, and City Council, which would also minimize land use compatibility issues. LU4.10 In the West End Industrial District, Consistent. The project proposes to retain establish and require new the existing sidewalks located along developments to provide pedestrian Irwindale Avenue and proposes a curb, and landscape linkages to other areas gutter, and sidewalk along Gladstone and businesses within the district and Street, which are considered sufficient to the Foothill Boulevard corridor, as linkages with the District's other appropriate., businesses, given the industrial nature of the surrounding area. The project also proposes landscaping along Gladstone Street and Irwindale Avenue, as depicted on the Preliminary Landscaping Plan. LU6.1 Accommodate industrial development Consistent. The project proposes an in accordance with Table CD-2, Land industrial development (i.e., the MRF/TS) Use Classifications (Industrial). within the District. LU6.2 Require all industrial buildings to be Consistent. Refer to Response to Policy distinctive, constructed of high quality 4.9 above and EIR Section 5.2, materials, and be of interesting and Aesthetics/Light and Glare. strong design. All buildings shall be visually attractive from the street, and from adjacent or nearby properties. LU6.3 Require rooflines and building Consistent. Refer to Response to Policy elevations to be visually attractive 4.9 above and EIR Section 5.2, from all vantage points. I Aesthetics/Light and Glare. 45635.0181716053448.1 LU6.4 Require site development plans to: Consistent. • Incorporate physical and visual The project proposes a decorative design elements that buffer perimeter security wall and landscaping industrial use from any nearby (along Gladstone Street and Irwindale residential neighborhood or use; Avenue) that would buffer the proposed development. Also, the MRF/TS would involve entirely indoor collection and processing of recyclable materials. There are no residential neighborhoods located nearby. The nearest residential uses are the City's southeast neighborhoods east of Jackson Avenue. • Provide elements that link Consistent. The project proposes to retain commercial and industrial uses the existing sidewalks located along (sidewalks and paths, common Irwindale Avenue and proposes a curb, architectural design, signage, gutter, and sidewalk along Gladstone landscape, etc.); and Street, which are considered sufficient linkages with the District's other businesses, given the industrial nature of the surrounding area. The project also proposes landscaping along Gladstone Street and Irwindale Avenue, as depicted on the Preliminary Landscaping Plan. • Require single level, "at grade" Consistent. The project proposes to retain parking facilities to be generously the existing sidewalks located along landscaped with shrubs and trees. Irwindale Avenue and proposes a curb, gutter, and sidewalk along Gladstone Street, which are considered sufficient linkages with the District's other businesses, given the industrial nature of the surrounding area. The project also proposes landscaping along Gladstone Street and Irwindale Avenue, as depicted on the Preliminary Landscaping Plan. LU10.1 Require the consideration and Consistent. There are no residential mitigation of noise, light, vehicular, properties located nearby. The nearest and other impacts on residential residential uses are the City's southeast properties in the design of commercial neighborhoods located east of Jackson and industrial development. Avenue. As discussed in EIR Sections 5.1 through 5.11 of the EIR, mitigation measures are recommended, in consideration of the project's environmental impacts. More specifically, refer to EIR Section 5.6, Noise Section 5_2, Aesthetics/Light and Glare, and Section 5.3, Traffic/Circulation, for discussions regarding the project's noise; light, and vehicular impacts, respectively. LU10.2 Require on-site lighting of Consistent. The project proposes on-site institutional, commercial, and lighting, as depicted on the Conceptual industrial uses be constructed or Site Lighting Plan. Also, as concluded in 45635.019 M6053448.1 located so that only the intended area EIR Section 5.2, Aesthetics/Light and is illuminated, off-site glare is Glare, project implementation would minimized, and adequate safety is result in less than significant impacts provided. involving light and glare. LU10.7 Control the development of industrial Consistent. Mitigation measures are and other uses that use, store, produce, recommended, in order to mitigate the or transport toxins, generate project's impacts involving hazardous unacceptable levels of noise, air materials, noise, air quality, and water emissions, or contribute other quality; refer to EIR Section 5.4, Air pollutants requiring adequate Ouali , Section 5.6, Noise, Section 5.9, mitigation measures confirmed by Hazards and Hazardous Materials, and environmental review and monitoring. Section 5.10 Hydrolozy and Water Quality, respectively. LU11.1 Require all structures to be constructed Consistent. The project's building and in accordance with City building and engineering plans will be reviewed by the other pertinent codes and regulations, Azusa Building Division, in order to including all new, adaptively re-used, ensure consistency with Azusa Municipal and renovated buildings; allowing Code Chapter 14, Buildings and Building appropriate exceptions for historically- Regulations. Chapter 14 includes the significant buildings. Building Codes, Electrical Code, Mechanical Code, and Plumbing Code, among others. Approval of all project plans would be required, prior to issuance of any building,. plumbing, electrical, or mechanical permit. LU 11.3 Require all developments including Consistent. The project is subject to renovations and adaptive reuse of Development Review, in order to ensure existing structures (except historically that the proposed development complies significant buildings) be designed to with all applicable Azusa Development provide adequate space for access, Code standards and regulations, and parking, supporting functions, open Azusa General Plan Policies. Further, the space, and other pertinent elements. project would include Use Permits and Variances, subjecting the proposed development to further discretionary review by the City Staff, Planning Commission, and City Council, in order to ensure the adequacy of the various project elements. OF Urban Form UF4.2 Encourage attractive gateway Consistent. The proposed project will treatments to establish a positive image revitalize the southwest entrance into the at the edges of the City and its districts City via Irwindale Avenue, enhancing the and corridors. gateway to the industrial district of Azusa. EC Economy and Community EC1 Build and maintain a strong, diverse Consistent. The addition of the MRF/TS economy in Azusa, business in the City of Azusa will provide additional revenue to enhance the quality of life for Azusa residents. EC4.1 Support the creation of high-quality Consistent. The MRF/TS will create jobs for relatively low skill levels. approximately 62 new jobs, of various skill levels. 45635.01 81716053448.1 EC9 Create a diverse and balanced revenue Consistent. The project will provide a base with long-term value, avoiding revenue stream that will enhance Azusa's excess reliance on a single revenue economic health and quality of life. resource. N Noise Goals and Policies NI Maintain community noise levels that Consistent. The project will meet the meet guidelines and allow for a high noise standards of the Industrial and quality of life Residential zones in the City of Azusa. SECTION 4: Based on the Staff Report, all written and oral comments and ` testimony presented to the City Council, and the aforementioned findings, the City Council does hereby approve the Development Agreement, attached hereto as Exhibit A. SECTION 5: 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 6: This Ordinance shall become effective thirty (30) days after its adoption. SECTION 7: A summary of this ordinance shall be published in the manner required by law. SECTION 8: The City Clerk shall certify to the adoption of this Ordinance. PASSED, APPROVED AND ADOPTED this 18th day of July 2011. JOSEPH R. ROCHA, MAYOR CITY OF AZUSA ATTEST: VERA MENDOZA, CITY CLERK CITY OF AZUSA 45 63 5.01817\6053448.1 I Vera Mendoza, City Clerk of the City of Azusa hereby certify that the foregoing Ordinance No 11-0 as duly introduced and placed upon its first reading at a regular meeting of the City Council of the City of Azusa held on the 5`h day of July 2011, and that thereafter, said ordinance was duly adopted and passed at a regular meeting of July 18, 2011, by the following vote of the Council: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: VERA MENDOZA, CITY CLERK CITY OF AZUSA APPROVED AS TO FORM: BEST BEST & KRIEGER LLP CITY ATTORNEY 45635.018 17%6053448.1 EXHIBIT A DEVELOPMENT AGREEMENT 45635.0181716053448.1 TRANSPORTATION ADVISORY COMMISSION Various City Policies regarding the Commission's Functions and Rules and Responsibilities: SECTION 1: City Council Policy regarding Commission Review of Matters SECTION 2: Pasadena Municipal Code SECTION 3: Rules and Regulations SECTION 1 City Council Policy regarding Commission Review of Matters TRANSPORTATION ADVISORY COMMISSION NO.-633 _ - FEB-21.2006 9;05RM PRSRIIENR CITY CLERK MLW_IZ°� °F F,sa ToF�cf=CUTIV� COMMI�T � o Wilma Allen m m •, ,Joyee�morson a� °RarED �° • Richard I5ruckner • ' Phyllis Currie ' • pcnnis Downs - OFFICE. OF THE MAYOR o - KavEzCll l • Steve Mcrmell Febr4ary 16, 2006 0 Patricia Lanc • �)emard lvlelekina Terrie Ann Allen • Connie Orozco Accessibility&Disability Commission � 400 N. Los Rabies Ave. #25 • Martin Faswch4 Pasadena, CA 91101 �, • ,Jahn Fratt Dear Terries. 1' Takashi Wada J ,fan 5andcm I am writing to report to you, as Chair of an advisory Commission, on the City Council's discussion February 6 regarding the advisory commissions. Stafr'had prepared a brief report to set forth certain questions,a copy of which is enclosed. At the beginning of this discussion, Councilmembers recognized that the work of the commissions is extremely important and valuable,and cypressed gratitude to all the commissioners for the many hours of volunteer service. As the discussion took place, attention focused on two provisions of the municipal code which appear to frame the subject being discussed. The first is tate "purpose and functions"provision of the ordinance creating each commission, and the other is Section 2.45.060,a code provision the Council adopted in 2004 setting forth a process by which questions regarding commission jurisdiction and agenda assignments can be resolved. See Attachment C to the enclosed staff report. In this regard, the City Attorney advised afterwards it would be inappropriate for commissions to place matters on their agenda or to.disouss matters that go beyond their subject matter jurisdiotion, Accordingly, the City Attorney's office advised that a topic that is beyond the scope of a commission's purpose and functions-should not be placed on an agenda unless approved or directed by the Council pursuant to Section 2.45.060. Following the discussion,the Council suggested that I call attention of the commissions to these provisions and that the commissions be grged to refer to them as questions come up in the course of their work. We hope this information will be helpful, Please let me know if you have any questions, Sincerely, BILL BOGUAARD Mayor aBIis enclosure 100 North Garfield Avenue - Pasadena, CA 91109 (626) 744.4311 Fax (626) 749•$921 - FEH.21.2006 9:05RM PRSRDENR CITY CLERK N0.633- P.2/2 Terrie Ann Allen Jerri Pace Peter J. Wong Accessibility &Disability Comm Arts &Culture Commission Code Enforcement Commission 400 N. Los Robles Ave, #25 2449 Mohawk St. #7 1189 Laurel St Pasadena, CA 91101 Pasadena, CA 91107 . Pasadena, CA 91103 Anne Hardy John J. Kennedy Stephen IvUcala CSW CDC Human Relations Commission 677 S, Oak Knoll Ave. POB 94656 1015 N. Michillinda Ave. #103 Pasadena, CA 91106 Pasadena, CA 91109 Pasadena, CA 91107 Abe Chorbajian Marcia Sola Wendy A, Nash. Design Commission Historic Preservation Commission Northwest Commission 2905 Thorndike Rd, 436 N. Raymond Ave. 1918 Lincoln#A Pasadena, CA 91107 Pasadena, CA 91103 Pasadena, CA 91103 Martha Yohalem Jill Switzer Anita Fronihol2 Human Services Commission Library Commission Recreation and Parks Commission 702 B. California Blvd, 995 S. Oakland Ave. 1435 Afton St. Pasadena, CA 91106 Pasadena, CA 91106 Pasadena, CA 91103 Sally Lunetta John B. Howe Vince Farhat OPP9ZAC SLPPC TAC 1594 N. Grand Oaks Ave. 180 S. Lake Ave: 469 California Terrace Pasadena, CA 91104 Pasadena, CA 91101 Pasadena, CA 91105 Diana Peterson-More Ben Green Sam Southard,Jr. Planning Commission Senior Commission Utility Advisory Commission 330 Markham Pl. 85 E. Holly St, 395 S. Oneida Dr. Pasadena, CA 91105 Pasadena, CA 91103 Pasadena, CA 91107 ATTACHMENT C 2.45.060 Commission review of matters implicating the work of other city bodies. Commissions are advisory to the city council and, unless otherwise specified in the ordinance which creates a particular commission, do not have authority over the work program or staff of any other commission or public body. Commissions are encouraged to consult with and to cooperate with other commissions in carrying out their responsibilities and functions. The city council affirms its right, on its own motion, to request the advice of any commission on any matter, including a matter within the jurisdiction of another commission or public body so long as the request is not in conflict with any other provision of this code or of state law. If a commission has a question as to whether it has jurisdiction over a particular matter, or should one commission wish to review a matter within the jurisdiction of another commission or public body which cannot be resolved cooperatively, the commission shall direct a request to the city council for direction and for leave to conduct a review of that matter, which request shall set forth the objectives of the review and propose both a process and a timetable for completion. The questioning commission shall refrain from acting on any questioned matter until direction is provided by the city council. (Ord. 6982 § 1., 2004) MEMORANDUM - CITY OF PASADENA PUBLIC WORKS AND TRANSPORTATION DEPARTMENT DATE: June 21, 2002 TO: Transportation Advisory Commission FROM: Director of Public Works and Transportation - RE: TAC Review and Comment on Environmental Impact Reports of Major Projects and Transportation Policies In the past two years the Department has arranged several presentations be made at TAC meetings to provide the most current information on specific developments. For example, TAC heard presentations on the Ambassador Campus (Legacy Development), STATS and the Sierra Madre Villa Biotech Campus developments. TAC recently ieiferat3-its desire"to_"be"-more informed on-the-status-o of or developments and prior to City Council action. Accordingly, staff will provide TAC the relevant materials for review and comment on the draft Environmental Impact Report for projects that may have community-wide significance, according the Predevelopment Plan Review Administrative Guidelines threshold: 1. The development exceeds 50,000 square feet and requires one discretionary action. ,2. Fifty(50) or more housing units; 3. Projects which the Director of Planning and Development determines to have community wide significance. If a project is required to conduct an environmental impact analysis due to its potential transportation draft Environmental Impact Report EIR will be resented to TAC in reference to the impacts, its p p ( ) p transportation/traffic impacts during the State required 45-day public review period. Comments from TAC will be forwarded to the Planning Commission and the City Council. This is similar to the process the Design and Cultural Heritage Commission uses for any project requiring an EIR. In addition to major projects, TAC will have opportunity to comment on transportation-related policies in the General Plan, all Specific Plans and Master Park Plans. Res ectfully Subm' ed by: IE A. GUTIERREZ Acting Director Prepared by: ERIC . SHE Transportation Planning &Development Manager Reviewed by: BAENAN JANKA Transportation Administrator Attachment I SECTION 2 Pasadena Municipal Code TRANSPORTATION ADVISORY COMMISSION Article III. - Advisory Boards, Commissions and Committees Created by the Council Chapter 2.135 - TRANSPORTATION ADVISORY COMMISSION Sections: 2.135.010 - Short title. 2.135.020 - Establishment. 2.135.030- Membership—Appointment and terms. 2.135.040 - Qualifications. 2.135.050 - Absences and vacancies. 2.135.060 - Election of officers. 2.135.070 - Meetings—Records. 2.135.080 - Rules and regulations. 2.135.090 - Annual report. 2.135.100 - Disclosure requirements. 2.135.110 - Purpose and functions. I2.135.010 - Short title. This chapter shall be known as the "Transportation Advisory Commission Ordinance." (Ord. 6229 § 2 (part), 1987) - I2.135.020 - Establishment. There is created and established a commission of the city to be known as the transportation advisory commission" and hereinafter called "commission." (Ord. 6229 § 2 (pari), 1987) I2.135.030 - Membership—Appointment and terms. A. The.commission shall consist of 9 members, who shall be appointed as follows: . 1 . Each of the 7 councilmembers and the mayor shall nominate 1 member for a total of 8 members. 2. The mayor shall nominate 1 member from persons recommended by the 7 councilmembers. 3. All nominations are subject to ratification by the city council. B. Members shall be appointed for a term of 3 years, and shall serve no more than 2 consecutive terms. A term of less than 1 year shall not be considered a full term. Terms expire on June 30th of the applicable years. A member shall continue in office for the term for which he/she was appointed or until his/her successor is appointed. No member who has served 2 consecutive terms shall be eligible for reappointment to the commission prior to the passage of a 2-year interval. C. If a member ceases to reside in the city prior to the expiration of a term, the member may complete the term only upon approval by the city council pursuant to Section 2.45.020. D. Any member of the commission may be removed by the city council at its pleasure. (Ord. 6820 §§ 39, 45 (part), 2000; Ord. 6229 § 2 (part), 1987) I2.135.040 - Qualifications. A. All members shall be residents of the city; provided however, that a person nominated by a director need not reside in the director's district. B. Members shall have experience and knowledge in the fields of transportation, urban planning and public services. (Ord. 6229 § 2 (part), 1987) I2.135.050 -Absences and vacancies. A. In the event a member has 3 consecutive unexcused absences from meetings of the commission, the city council may declare the office of such member vacant. The staff to the commission shall advise the secretary to the mayor of any member with 3 consecutive unexcused absences. The chair of the commission may excuse absences. B. Vacancies, whether scheduled or unscheduled, shall be filled by the person who nominated the member to the vacant office, or by his/her successor, in the same manner as set forth in Section 2.135.030. (Ord. 6820 § 45 (part), 2000; Ord. 6229 § 2 (part), 1987) I2.135.060 - Election of officers. At the first meeting of the commission, and thereafter at its first meeting of each subsequent year, the members shall elect a chair and a vice chair. In the absence or disability of the chair and vice chair, the commission may designate a temporary chair. (Ord. 6229 § 2 (part), 1987) 2.135.070 - Meetings—Records. A. The commission shall meet at least once a month. All its meetings shall be held in accordance with the Ralph M. Brown Act and shall be open to the public except as provided by law. Special meetings may be called by the chair or a majority of the commission. B. A quorum shall be a majority of the commission seats filled by the city council. A seat is deemed to be filled after a nominee has been sworn in by the city clerk. No action of the commission shall be valid without the affirmative vote of at least three members. C. The commission shall keep a record, which shall be available for public inspection, of all of its resolutions, proceedings and other actions. (Ord. 6675 § 2 (part), 1996; Ord. 6229 § 2 (part), 1987) I2.135.080 - Rules and regulations. The commission shall adopt and amend, by the affirmative vote of 5 members, rules and regulations for the conduct of the commission's business consistent with this chapter. Such rules and regulations shall be submitted to the city council and shall not become effective until approved and ordered filed by the council. (Ord. 6820 § 40, 2000: Ord. 6229 § 2 (part), 1987) I2.135.090 -Annual report. The commission shall submit an annual report and workplan to the city council no later than September 1st of each year. Attendance records of members shall be included as part of the annual report. (Ord. 6930 § 18, 2003: Ord. 6820 § 45 (part), 2000; Ord. 6229 § 2 (part), 1987) I2.135.100 - Disclosure requirements. Members of the commission shall not be required to file annual statements of economic interest pursuant to the city's conflict of interest code. (Ord. 6229 § 2 (part), 1987) I2.135.110 - Purpose and functions. A. The primary purpose of the commission is to advise the city council concerning policies affecting the city's transportation system. B. The commission shall study and hold public hearings assessing the economic, environmental and social adequacy of the city's transportation system and shall ` recommend short and long-range measures for its improvement. C. The commission shall study and make policy recommendations to the city council on the following policy issues: 1. Measures affecting the traffic circulation in the central business district; 2. Annual and long-range allocation of Proposition A funds; 3. The annual and 5-year capital programs of the city regarding streets 'and transportation; 4. Federal, state and regional actions affecting the transportation network serving Pasadena, including existing and proposed freeways; 5. Inclusion of Pasadena in Southern California's light rail transit network; 6. Measures designed to manage or reduce traffic congestion, including ride sharing, vanpooling, staggering of work hours, application of new technology and encouragement of alternate modes of transit; 7. Provision for a downtown public transit system such as a trolley or shuttle bus system; 8. Protection of residential neighborhoods from negative transportation system impacts; 9. Provision for service to those with limited access to transportation, including the poor, the disabled, the elderly and the young; 10.Energy conservation aspects of transportation; 11.Such other matters as shall be referred from time to time to the commission by the city council. (Ord. 6820 § 45 (part), 2000; Ord. 6229 § 2 (part), 1987) s SECTION 3 Rules and Regulations TRANSPORTATION ADVISORY COMMISSION Approved December 1992 * Note: The number of commissioners has increased from 7 to 9 since the adoption of these rules and regulations, raising the quorum requirements to 5. See Pasadena Municipal Code for the latest provisions. i The following rules were adopted by the Transportation Advisory Commission on October 2, 1992 and approved by the Board of Directors on December 1992 for the conduct of the Commission's business consistent with the Pasadena Municipal Code, RULES AND REGULATIONS TRANSPORTATION ADVISORY COMMISSION ARTICLE I NAME The name of this advisory body is the Transportation Advisory Commission (hereinafter referred to as Commission). ARTICLE 11 PURPOSE The purpose of this Commission is to discuss, analyze, evaluate and make policy recommendations to the City Council on short and long range measures to improve the City's transportation system. Specifically, the Commission shall study and make policy recommendations on policy issues including, but not limited to: 1. Measures affecting the traffic circulation and transportation in the City of Pasadena. 2. Annual and long range allocation of Proposition A and C funds. 3. Annual capital programs and five-year Capital Improvement Program of the City affecting streets and transportation. 4. Federal, state and regional funding actions affecting the transportation network serving Pasadena, including existing and proposed freeways. 5. Inclusion of Pasadena in Southern California's Light Rail Transit Network. 6. Transportation Demand Management (TDM) programs and measures designed to manage or reduce traffic congestion, including ridesharing, vanpooling, alternative work-hours strategies, application of new technologies, and encouragement of existing and alternative modes of.transit. 7. Provision for a public transit system such as a trolley or shuttle bus system. 8. Protection of residential neighborhoods from negative transportation system impacts. 9. Provision for service to those with limited access to transportation. 10. Promotion of energy conservation aspects of transportation. 11. Leadership of and participation in local and regional studies and committees or task forces dealing with transportation issues. 12. Assistance to other City Commissions, Committees and Task Forces regarding transportation-related issues. 13. Such other matters as shall be referred from time to time to the Commission by the Board of Directors. ARTICLE III . MEMBERSHIP SECTION 1. The membership of this Commission shall be limited to seven (7) members, appointed from the residents of the City having experience and knowledge in the field of transportation, urban planning, and public services. Members shall represent the diversity of the City. SECTION 2. .Members shall be appointed in conformity with applicable provisions in Chapter 2.135, Title 2 of the Pasadena Municipal Code. SECTION 3. Any member desiring to resign from the Commission shall submit his/her resignation in writing to the Chair of the Commission and to the Director (or member of City Council) who nominated the member to the office, or his/her successor. .SECTION 4: Any member with three (3) consecutive unexcused absences will be removed from the Commission. A member must advise the Chair twenty-four (24) hours in advance of any anticipated absence from a scheduled meeting. The Chair may excuse an absence. SECTION 5. Absent members cannot vote by proxy on questions before the Commission at scheduled meetings. SECTION 6. Upon appointment, all members shall receive a copy of these rules and regulations and Chapter 2.135 of the Pasadena Municipal Code relating to this Commission. SECTION 7. Each member has the right to: a. Receive timely notice of all meetings with accompanying documents; b. Receive a copy of the minutes prior to approval; C. Make motions or second them; d. Debate motions; e. Vote on motions; f. Hold office on the Commission; g. Make inquiries, parliamentary or informational; and h. Make recommendations to the Commission. SECTION 8. No member shall purport to represent to speak on behalf of the Commission without the prior approval of a majority of the Commission. SECTION 9. Code of Ethics a. If, due to any of the following factors, a member has a conflict of interest in a matter before the Commission, that member shall declare the interest publicly, refrain from participating in the deliberations, abstain from voting on the mater, leave the hearing room during any hearing and deliberations, and not discuss the matter with any other Commission member prior to final action by the Commission: 1. Member is a client, employee or business associate of a party with a matter before the Commission; 2. Member is related by flood, marriage or adoption to a party with a matter before the Commission; 3. Member has a financial interest in the matter before the Commission; 4. Member and the party with a matter before the Commission are affiliates in an association which would cause a reasonable person to question the Commission member's impartiality in resolving the matter before the Commission; 5. Member is a friend or acquaintance of a party with a matter before the Commission which would cause a reasonable person to question the Commission member's impartiality in resolving the matter before the Commission. b. No member shall participate in any matter before the Commission which would give the appearance of impropriety. ARTICLE IV OFFICERS SECTION 1. The officers of the Commission shall be a Chair, Vice-Chair and Secretary. The Secretary may be a member of the City staff. SECTION 2. The Chair shall have the following responsibilities: preside at all meetings of the Commission; vote on every motion as other members; call special meetings when necessary; compose the agenda; prepare the annual report for submission to the Board of Directors; fix the date, hour and place of meeting; make appointments to committees; execute official communications; sign orders or recommendations of the Commission, excuse absences; advise the Board of Directors of the names of members with three consecutive, unexcused absences and of upcoming vacancies; and conduct Commission business in a manner consistent with these rules and regulations. SECTION 3. The Vice-Chair shall perform the duties of an absent or disabled Chair and perform such other duties as are assigned by the Chair. In the absence of both the Chair and Vice-Chair, the members shall select a temporary chairperson. SECTION 4. The Secretary shall have the following responsibilities: record the Minutes of all proceedings before the Commission; maintain the records of the Commission in complete and up-to-date order; report all correspondence to the Commission; advise the Chair three (3) months prior to expiration of appointments; advise the Chair of any members with three (3) consecutive, unexcused absences; assist in the preparation of the agendas; and make and serve all notices. SECTION 5. The officers shall be elected by open ballot to serve for one year or until their successors are elected. Their terms of office shall begin at the close of the annual meeting at which they were elected. The annual meeting of the Commission shall be held in July. SECTION 6. No member shall hold more than one office at a time. ARTICLE V MEETINGS—GENERAL RULES SECTION 1. The regularmeetings of the Commission shall be held on the first Friday of each month, except for August. Written notice of these meetings, including the date, time and location, shall be given to each member, the City Council and the City Manager. Meetings may be scheduled differently based upon need and action by the Commission. SECTION 2. The regular meeting in July shall be known as the annual meeting and shall be for the purpose of electing officers, and for any other business that may arise. SECTION 3. Special meetings may be scheduled by the Chair or a majority of the Commission. The purpose of the meeting shall be stated in the notice. Except in cases of emergencies, notice of special meetings shall be given at least twenty-four (24) hours in advance. SECTION 4. Four members of the Commission shall constitute a quorum. The Commission may adopt and amend by the affirmative vote of four(4) members, any action item and rules and regulations for the conduct of the Commission. Such action, rules and regulations, shall be submitted to the City Council and shall not become effective until approved by the Council. SECTION 5. All meetings of the Commission shall be held in accordance with the Ralph M. Brown Act and shall be open to the public as provided by law. SECTION 6. A matter must be on the agenda to be discussed and acted upon. A matter may, unless otherwise provided by law, be placed on the agenda by a member, by a request from a non-member agreed to by a member, or by staff. SECTION 7. The rules contained in the current edition of Robert's Rules of Order(newly revised) shall govern the Commission in all cases to which they are applicable and are not inconsistent with these rules, and the Pasadena Municipal Code, or the Ralph M. Brown Act. ARTICLE VI MEETINGS—SPECIAL RULES SECTION 1. Discussion of any agenda item shall be limited to ten (10) minutes unless the Commission votes to extend discussion for an additional ten (10) minutes maximum. SECTION 2. A member may not speak more than twice for or against any agenda item unless an extension is granted by the chairman. SECTION 3. A member may be asked not to speak longer than three (3) minutes during discussion. SECTION 4. Members should not prolong discussions by repeating an argument already made. SECTION 5. The order of business at all meetings shall be as follows: a. Call to order b. Roll Call C. Reading and approval/correction of Minutes of previous meeting d. Comments on the Agenda e. Commissioners' Comments f. Chairman's Statement g. Public Comments h. Old Business i. New Business j. Committee Reports, Correspondence k. Adjournment ARTICLE VII MEETINGS— MOTIONS SECTION 1. The Commission may employ five (5) motions in reaching decisions: a. Motion for action: A proposal by a member that the Commission do something. b. Motion to amend: A proposal to amend a motion made by insertion, addition, deletion, or substitution. G. Motion to rescind: A proposal to repeal a motion before a different course of action is decided (may have been found to be impractical). d. Motion to table: A proposal to Cut off discussion and act on on a motion that has been made until a later time. e. Motion to call the question: A proposal to cut off discussion and proceed with a vote on a motion under consideration. SECTION 2. Once a motion is before the Commission, the Chair shall not permit the public to speak or comment during the Commission's discussion of that motion. SECTION 3. All voting on issues before the Commission shall be by voice vote unless a roll call is requested by the Chair or a member of the Commission. There shall be no secret ballots. SECTION 4. After a motion has been made and seconded, the Chair shall repeat the motion for the Commission, with the assistance of the secretary if the Chair requests. The Chair may rule the motion out of order or restate the motion so that the Commission may know what is before it for consideration and action. SECTION 5. The Chair shall announce the vote on the motion. In announcing the vote, the Chair shall state whether the motion carried or failed and the number of votes for and against. ARTICLE VIII HEARING PROCEDURES SECTION 1. The Commission shall follow the procedures outlined below in conducting hearings: a. The title of the matter shall be announced by the Chair. b. A City staff member or other appropriate person shall then present the matter to the Commission. C. The Chair shall call for all proposers, applicants, proponents, or opponents to individually present their views, proposals, additional facts, or evidence. d. As appropriate for the nature of the hearing, the Chair shall call for statements from other persons favoring the matter, opposing the matter or having additional comments concerning the matter under consideration. e. As appropriate for the nature of the hearing, the Chair shall give the proposer, applicant, proponent or opponent an opportunity for rebuttal at the completion of the statements. f. The Chair shall declare the hearing closed. g. As necessary, by motion, the Commission shall take action on the matter. h. As necessary, the Chair shall announce the decision of the Commission. i. All decisions of the Commission relating to matters requiring a public hearing shall be in writing and shall be mailed to the parties concerned within a reasonable time after the hearings. ARTICLE IX COMMITTEES AND PANELS Unless otherwise provided in Chapter 2.135, Title 2, of the Pasadena Municipal Code, the Chair ` may appoint members to ad hoc committees or panels necessary to carry on the work of the Commission. The Chair shall define their area of operation and concern, and establish rules of operation. The Chair shall be an ex officio member of all committees so created. ARTICLE X AMENDMENT OF RULES AND REGULATIONS These rules may be amended at any regular meeting of the Commission by a majority vote, provided that the amendment has been submitted in writing at the previous meeting. Proposed, amendments must be submitted after approval by a majority vote of the Commission to the City Council for final approval. TAC-Rules and Regulations of 1992 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Azusa Attn: City Clerk 213 E.Foothill Blvd. Azusa, CA 91702-1295 Exempt from Recording Fee per GovernmentCod027383 (Space above for Recorder's Use) TRANSFER STATION OPERATING AND DEVELOPMENT AGREEMENT between CITY OF AZUSA a California municipal corporation and AZUSA LAND MANAGEMENT a California corporation 45635.01817\5878572 4 1 TRANSFER STATION OPERATING AGREEMENT This Transfer Station Operating Agreement ("Agreement") is entered on July 18, 2011(Commencement Date), by and between the CITY OF AZUSA and AZd1SA LAND RECLAMATION COMPANY, a Waste Management Company ("WM"). CITY and WM are sometimes individually referred to as "Party" and collectively as "Parties." RECITALS WHEREAS, the City of Azusa is a California municipal corporation; and WHEREAS, AZUSA LAND RECLAMATION COMPANY ("WM") is a California Corporation; and WHEREAS, WM has applied to CITY for various land use entitlements (Approvals) necessary to construct and operate a Solid Waste Transfer Station Materials Recovery Facility, Green Waste Processing Facility, Household Hazard Waste Collection Facility, a parking area and ancillary Facilities Station (collectively, Transfer Station) at 1501 Gladstone Street, Azusa, CA) (the Property); and WHEREAS, in consideration of obtaining such Approvals from CITY and obtaining electricity at the rate set forth here in, and in order to offset impacts on CITY in accordance with certain conditions imposed on the Conditional Use Permit which is a part of the Approvals, WM has agreed to pay a certain amount of money based on the number of tons of materials received of at the Transfer Station and to provide other consideration, as set forth in this Agreement; NOW, THEREFORE, in consideration of the covenants, promises, and agreements hereinafter set forth, CITY and WM do,mutually agree as follows: 1. PURPOSE OF AGREEMENT The purpose of this Agreement is to create certain obligations between the parties and their successor(s), including an obligation of WM to pay CITY a fee based upon the number of tons of materials received at the Transfer Station for so long as the Transfer Station is in operation. 2. LAND USE APPROVALS WM's obligations under this Agreement shall not become enforceable until CITY has issued all Approvals necessary for WM to operate a Transfer Station on the Property. 45635.018 17k5878572.4 2 3. WASTE MANAGEMENT'S PAYMENT OF FEE Upon final issuance of the Approvals and upon the date that WM first begins to accept waste materials at the Transfer Station, WM shall pay CITY a fee as follows: Beginning on the Operation Date and continuing or a period of three (3) full calendar years thereafter, WM shall pay a fee of One Dollar and Sixty Cents ($1.60) per ton for all material delivered to the Transfer Station. For purposes of this Agreement, the Operation Date shall be that date upon which WM begins to accept waste materials at the Transfer Station for processing. At the end of third year of operation and beginning on the first day of the fourth year of operation, WM shall pay a fee of One Dollar and Sixty Cents ($1.60) per ton for all materials received at the Transfer Station where such materials represents between zero (0) and seventy five percent (75%) of the daily permitted capacity as determined based on the maximum number of tons for which the Transfer Station is licensed to accept on each operating day and a fee of Two Dollars ($2.00) per ton for all materials received at the Transfer Station where such material represents between seventy six percent (76%) and one hundred percent (100%) of the daily permitted capacity. The calculation of the fee under this paragraph will be made on a daily basis. The fee amounts set forth immediately above shall be adjusted beginning on the first day of the sixth year of operation and on the first day of each subsequent year of operation, to reflect changes in the Consumer Free Index of the Bureau of Labor Statistics of the U.S. Department of Labor for All Urban Consumers, (CPI — U) for The Los Angeles, Riverside-Orange CA—All Items, for the most recent twelve month period immediately preceding the date of the adjustment.. 4. TIMING OF PAYMENTS Payment shall be made by WM to CITY on a quarterly basis, within forty- five (45) days from the end of each calendar quarter. 5. ELECTRICITY RATES For the first five (5) years following the Operation Date, CITY shall provide WM with electric utility services to operate the Transfer Station and the rates charged for such utility service shall be at a discount of fifteen percent (15%) below the current commercial rates in accordance with the City of Azusa's written policies concerning the Utilities Economic Development program. 6. RECORDS WM shall keep books and records relating to the tonnage of waste transferred at the Transfer Station, in a satisfactory form and content consistent 45635.01817\5878572.4 3 with generally accepted accounting practices, and permit review, verification, and audit by CITY when requested. 7. DAY LABORER SITE WM shall at its sole cost and expense cause the day laborer employment site located at 1501 W. Gladstone Avenue, Azusa to be relocated to a nearby location within the City of Azusa. The relocated day laborer employment center shall have all of" the following improvements including: restrooms, tables, benches, shade structures and drinking water. In lieu of relocating the day laborer site, at the City of Azusa's sole discretion, WM shall pay the City of Azusa a one time payment of $200,000.00 Upon payment WM shall have no further obligations with respect to the site. 8. COMPLIANCE WITH LAW WM shall develop the Transfer Station, and shall operate and maintain the Transfer Station in accordance with sound operating practices and shall receive and process waste and segregate and produce recycled materials in accordance with all applicable federal, state, and local laws and regulations, including, without limitation, all environmental laws and regulations, and the Transfer Station's APPROVAL conditions, including conditions and regulations for load checking program requirements. It shall operate the Transfer Station with sufficient trained staff and shall develop and maintain safety, hazardous waste exclusion, and other programs, rules and standards consistent with sound operating practice for similar facilities. WM warrants that it will comply with all applicable laws and regulations, as they, from time to time, may be amended, specifically including, but not limited to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901, Comprehensive Environmental Response, Compensation and Liability Act 42 U.S.C. §§ 9601 ("CERCLA"), the California Integrated Waste Management Act of 1989, codified in part at Public Resources Code §§ 40000 et. seq., ("AB 939"), the Carpenter-Presley-Tanner Hazardous Substance Account Act, codified at California Health & Safety Code §§ 25300 et seq ("HSSA"), Cal Recycle requirements and all other applicable laws and regulations of the United States, the State of California, the County of Los Angeles, the rules of the Air Quality Management District applicable to operators of refuse transfer facilities and material recovery facilities and operators of fleets of refuse transfer vehicles, as such rules may be adopted or amended during the term of this Agreement, ordinances of the CITY and the requirements of local enforcement agencies and all other agencies with jurisdiction. WM shall at all times during the period of this Agreement, operate its fleet of refuse transfer trucks, if any, in full compliance with all applicable rules and regulations. 45635.01817\5878572.4 4 9. INSURANCE AND INDEMNIFICATION A. Indemnification. 1. WM shall indemnify, defend, protect and hold harmless CITY, its elected officials, officers, employees, volunteers, agents, assigns and any successor or successors to City's interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses,.demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorney and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever (collectively, "Claims") paid, incurred or suffered by, or asserted against, CITY or its elected officials, officers, employees, volunteers or agents arising from or attributable to this Agreement, or arising from or attributable to any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether undertaken due to governmental action) concerning any hazardous waste received at the Transfer Station which is or has been transported, transferred, processed, stored, or disposed of by WM, or arising from or relating to WM's activities pursuant to this Agreement which result in a release of a hazardous waste into the environment, including but not limited to Claims arising out of any actual or alleged violation of any applicable law or regulation. This indemnity is intended to operate as an agreement pursuant to § 107(e) of CERCLA, 42 U.S.C. § 9607(e) and California Health and Safety Code § 25364, to defend, protect, hold harmless and indemnify CITY from all forms of liability under CERCtA, RCRA, other statutes or common law for any and all matters addressed, and shall be limited to the extent of the CITY's liability. This provision shall survive the expiration of the Agreement. 2. Additional Indemnification Obligations. In addition to the indemnification obligations created above, WM shall indemnify, defend, protect and hold harmless CITY, its elected officials, officers, employees, volunteers, agents, assigns and any successor or successors to City's interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or . administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorney and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever (collectively, "Claims") paid, incurred or 45635.01817\5878572.4 5 - suffered by, or asserted against, CITY or its elected officials, officers, employees, volunteers or agents (except for Claims arising out of the negligence or willful misconduct of the City, its officials, officers, employees, volunteers or agents) arising from or attributable to WM's operation of the Transfer Station, or WM's transportation, transfer, processing, storage, or disposal of any solid waste received at the Transfer Station by WM pursuant to this Agreement, including but not limited to Claims arising out of any actual or alleged violation of any applicable law or regulation. B. Workers' Compensation and Employers' Liability Insurance WM shall obtain and maintain in full force and effect throughout the entire term of this Agreement full workers' compensation insurance and Employers' Liability Insurance with a minimum limit of FIVE MILLION DOLLARS ($5,000,000.00) in accord with the provisions and requirements of the Labor Code of the State of California. Copies of policies and endorsements that implement the required coverage shall be filed and maintained with the City Clerk throughout the term of this Agreement. The.policy providing- coverage shall be amended to provide that the insurance shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days (ten (10) days for non-payment) prior written notice by certified mail, return receipt requested, has been given to CITY. The policy shall also be amended to waive all rights of subrogation against the CITY, its officers, board members, employees & trustees for losses which arise from work performed by the named insured under this Agreement. C. Liability Insurance. WM shall obtain and maintain in full force avid effect throughout the entire term of this Agreement a Broad Form Comprehensive General Liability (occurrence) policy with a minimum limit of TEN MILLION DOLLARS ($10,000,000.00) aggregate and TWO MILLION DOLLARS ($2,000,000.00) per occurrence and a Commercial Auto Liability Insurance policy with a minimum limit of FIVE MILLION DOLLARS ($5,000,000.00). Said insurance shall protect WM and CITY from any claims for damages for bodily injury, including accidental death, as well as from any claim for property damage which may arise from operations performed pursuant to this Agreement. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. General liability coverage can be provided in the form of an endorsement to the CONTRACTOR'S insurance, or as a separate owner's policy. The following language is required to be made a part of all of the insurance policies required by this Section: 1. "The City of Azusa, its officers, employees, agents, and volunteers are hereby added as insured's with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of WM; and with respect to liability arising out of work or operations performed by or on behalf of WM 45635.0181 75878572.4 6 including materials parts or equipment furnished in connection with such work or operations". 2. "When this endorsement applies, such insurance as is afforded by the general liability policy is primary insurance and other insurance shall be excess to the insurance afforded by this endorsement." 3. "This policy shall act for each insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company." 4. "Thirty (30) days prior written notice by certified mail, return receipt requested, shall be given to the City of Azusa in the event of suspension, cancellation, reduction in coverage or in limits or non-renewal of this policy for whatever reason. Ten (10) days written notice by certified mail, return receipt requested shall be given to the City of Azusa in the event of suspension due to non payment. Such notices shall be sent to the City Manager, City Attorney and City Clerk." The insurance required by this Agreement shall be with insurers which are Best A- rated, or better, and California-Admitted, although WM shall have the right to request that a lower rated or non-California Admitted insurer be considered, which CITY may or may not approve. The CITY shall be included as an additional insured on each of the policies and policy endorsements. The insurance required by this Agreement is in addition to, and not in lieu or limitation of, the indemnification provisions above, and shall not act to limit WM's obligations under the indemnification provisions. D. Evidence of Insurance Coverage. WM shall file copies of the executed endorsements evidencing the above required insurance coverage with the City Clerk. In addition, CITY shall have the right of inspection of all insurance policies required by this Agreement. WM also agrees to establish an insurance policy repository and to maintain copies of insurance policies required pursuant to this Agreement for twenty-five years (25 years) after the end of the term during which collection services are to be provided pursuant to this Agreement. E. Self Insurance To the extent provided by law, all or any part of any required insurance may be provided under a plan of self-insurance approved by the State of California. F. Subcontractors WM shall include all subcontractors as insured's under its policies or shall obtain separate certificates and endorsements for each subcontractor. G. Modification of Insurance Requirements. 45635.01817\5878572.4 7 The insurance requirements provided in this Agreement may be modified or waived by CITY, in writing, upon the request of WM if the CITY determines such modification or waiver is in the best interest of CITY considering all relevant factors, including exposure to CITY. H. Rights of Subrogation All required insurance policies shall preclude any underwriter's rights of recovery or subrogation against CITY with respect to losses which arise from work performed by WM under this Agreement, with the express intention of the parties being that the required insurance coverage protects both parties as the primary coverage for any and all losses covered by the above described insurance. WM shall ensure that any companies issuing insurance to cover the requirements contained in this Agreement agree that they shall have no recourse against CITY for payment or assessments in any form on any policy of insurance with respect to losses which arise from the work performed by WM under this Agreement. The clauses 'Other Insurance Provisions' and 'Insured Duties .in the Event of an Occurrence, Claim or Suit' as it appears in any policy of insurance in which CITY is named as additional insured shall not apply to CITY. 10. PREVAILING PARTY The prevailing party in any legal action commenced in relation hereto shall be entitled, in addition to any damages or other relief granted by the court, to recover its reasonable costs of prosecuting or defending any such action from the non-prevailing party including attorney's fees, court and other costs. If the legal action involves a number of separate claims and the decision of the court is partly in favor of one party and partly in favor or the other, then each party shall pay its own legal costs. 11. TERMINATION: DEFAULT The failure of WM to comply with the terms and conditions of the Agreement, and the ordinances and applicable codes of the City or the laws, rules or regulations of the State of California or the United States of America, shall constitute a default. In the event of such a default, City shall notify WM, in writing, of the specific nature of the default. WM shall have thirty (30) days from the date of notification to provide a means of curing the default satisfactory to City. In the event that the default continues longer than thirty (30) days after the date of notification, City shall have the right to terminate this Agreement by giving WM thirty (30) days written notice of such termination and termination may result in the termination of the related entitlements necessary to continue operating. 12. INDEPENDENT STATUS 45635.01817\5878572.4 $ WM is an independent entity and not an officer, agent, servant or employee of CITY. WM is solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership or joint venture between CITY and WM, nor an arrangement for the disposal of hazardous substances. Neither WM nor its officers, employees, agents, or subcontractors shall obtain any rights to retirement or any other benefits which accrue to CITY employees. 13. PROPERTY DAMAGE Any physical damage caused by the negligent or willful acts or omissions of employees of WM to public or private property shall be repaired or replaced by WM at WM's sole expense. 14. MODIFICATIONS, CHANGES OR AMENDMENTS This Agreement constitutes the entire agreement between the CITY and WM and no alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the Parties hereto. 15. ASSIGNMENT This Agreement shall not be assigned without the express written consent of the Parties. 16. JURISDICTION AND VENUE This Agreement is to be construed under the laws of the State of California. The Parties agree to the jurisdiction and venue of the appropriate courts in the County of Los Angeles, State of California. 17. WAIVER Any failure by CITY at any time to enforce or require the strict keeping and performance by WM of any of the terms or conditions of this Agreement shall not constitute a waiver by CITY of any subsequent or other breach of the same or any other term hereof. 18. BINDING ON SUCCESSORS WM, its successors in interest and assigns shall be bound by all the provisions contained in this Agreement, and all of the Parties thereto shall be liable hereunder. 19. INTERPRETATION Since the parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any party. Any term 45635.01817\5878572.4 9 referencing time, days or period for performance shall be deemed calendar days and not work days. All references to WM include all personnel, employees, agents, and subconsultants of WM, except as otherwise specified in this Agreement. All references to CITY include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 20. SEVERABILITY If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 21. SIGNING AUTHORITY WM warrants that their respective undersigned representatives have been . duly authorized to execute this Agreement on behalf of WM, and WM hereby waives any right to assert that this Agreement is void or invalid as a result of an unauthorized signature by their respective representatives. 22. NOTICES Notices and payments shall be sent to WM addressed as follows: Azusa Land Reclamation Company 1211 W. Gladstone Avenue Azusa, CA 91702 Attn: District Manager With copy to: Waste Management-Western Group 7025 N. Scottsdale Rd., Suite 200 Scottsdale, AZ 85253 Attn: Group Legal Counsel Notices shall be sent to the CITY addressed to the following: City of Azusa 213 E. Foothill Blvd. Azusa, CA 91702 Attn: City Attorney 4563 5,018M5878572.4 10 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized officers on the date and year dated below. DATED: 2011 CITY OF AZUSA By: Mayor ATTEST: By: Approved as to Form: By: City Attorney DATED: 2011 AZUSA LAND RECLAMATION COMPANY By: Its: President ATTEST: By: Its: Secretary Approved as to Form: By: Legal Counsel 45635.0181715878572.4 1 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Azusa Attn: City Clerk 213 E. Foothill Blvd. Azusa, CA 91702-1295 Exempt from Recording Fee per GovernmentCode427383 (Space above for Recorder's Use) TRANSFER STATION OPERATING AND DEVELOPMENT AGREEMENT between CITY OF AZUSA a California municipal corporation and AZUSA LAND MANAGEMENT a California corporation 45635.018M58 78572.4 TRANSFER STATION OPERATING AGREEMENT This Transfer Station Operating Agreement ("Agreement") is entered on July 18, 2011 (Commencement Date), by and between the CITY OF AZUSA and AZUSA LAND RECLAMATION COMPANY, a Waste Management Company ("WM"). CITY and WM are sometimes individually referred to as "Party' and collectively as "Parties." RECITALS WHEREAS, the City of Azusa is a California municipal corporation; and WHEREAS, AZUSA LAND RECLAMATION COMPANY ("WM") is a California Corporation; and WHEREAS, WM has applied to CITY for various land use entitlements (Approvals) necessary to construct and operate a Solid Waste Transfer Station Materials Recovery Facility, Green Waste Processing Facility, Household Hazard Waste Collection Facility, a parking area and ancillary Facilities Station (collectively, Transfer Station) at 1501 Gladstone Street, Azusa, CA) (the Property); and WHEREAS, in consideration of obtaining such Approvals from CITY and obtaining electricity at the rate set forth here in, and in order to offset impacts on CITY in accordance with certain conditions imposed on the Conditional Use Permit which is a part of the Approvals, WM has agreed to pay a certain amount of money based on the number of tons of materials received of at the Transfer Station and to provide other consideration, as set forth in this Agreement; NOW, THEREFORE, in consideration of the covenants, promises, and agreements hereinafter set forth, CITY and WM do mutually agree as follows: 1. PURPOSE OF AGREEMENT The purpose of this Agreement is to create certain obligations between the parties and their successor(s), including an obligation of WM to pay CITY a fee based upon the number of tons of materials received at the Transfer Station for so long as the Transfer Station is in operation. 2. LAND USE APPROVALS WM's obligations under this Agreement shall not become enforceable until CITY has issued all Approvals necessary for WM to operate a Transfer Station on the Property. 45635.0181715878572.4 - 2 3. WASTE MANAGEMENT'S PAYMENT OF FEE Upon final issuance of the Approvals and upon the date that WM first begins to accept waste materials at the Transfer Station, WM shall pay CITY a fee as follows: Beginning on the Operation Date and continuing or a period of three (3) full calendar years thereafter, WM shall pay a fee of One Dollar and Sixty Cents ($1 .60) per ton for all material delivered to the Transfer Station. For purposes of this Agreement, the Operation Date shall be that date upon which WM begins to accept waste materials at the Transfer Station for processing. At the end of third year of operation and beginning on the first day of the fourth year of operation, WM shall pay a fee of One Dollar and Sixty Cents ($1.60) per ton for all materials received at the Transfer Station where such materials represents between zero (0) and seventy five percent (75%) of the daily permitted capacity as determined based on the maximum number of tons for which the Transfer Station is licensed to accept on each operating day and a fee of Two Dollars ($2.00) per ton for all materials received at the Transfer Station where such material represents between seventy six percent (76%) and one hundred percent (100%) of the daily permitted capacity. The calculation of the fee under this paragraph will be made on a daily basis. The fee amounts set forth immediately above shall be adjusted beginning on the first day of the sixth year of operation and on the first day of each subsequent year of operation, to reflect changes in the Consumer Free Index of the Bureau of Labor Statistics of the U.S. Department of Labor for All Urban Consumers, (CPI — U) for The Los Angeles, Riverside-Orange CA —All Items, for the most recent twelve month period immediately preceding the date of the adjustment.. 4. TIMING OF PAYMENTS Payment shall be made by WM to CITY on a quarterly basis, within forty- five (45) days from the end of each calendar quarter. 5. ELECTRICITY RATES For the first five (5) years following the Operation Date, CITY shall provide WM with electric utility services to operate the Transfer Station and the rates charged for such utility service shall be at a discount of fifteen percent (15%) below the current commercial rates in accordance with the City of Azusa's written policies concerning the Utilities Economic Development program. 6. RECORDS WM shall keep books and records relating to the tonnage of waste transferred at the Transfer Station, in a satisfactory form and content consistent 45635.01817%5878572.4 3 with generally accepted accounting practices, and permit review, verification, and audit by CITY when requested. 7. DAY LABORER SITE WM shall at its sole cost and expense cause the day laborer employment site located at 1501 W. Gladstone Avenue, Azusa to be relocated to a nearby location within the City of Azusa. The relocated day laborer employment center shall have all of the following improvements including: restrooms, tables, benches, shade structures and drinking water. In lieu of relocating the day laborer site, at the City of Azusa's sole discretion, WM shall pay the City of Azusa a one time payment of $200,000.00 Upon payment WM shall have no further obligations with respect to the site. 8.. COMPLIANCE WITH LAW WM shall develop the Transfer Station, and shall operate and maintain the Transfer Station in accordance with sound operating practices and shall receive and process waste and segregate and produce recycled materials in accordance with all applicable federal, state, and local laws and regulations, including, without limitation, all environmental laws and regulations, and the Transfer. Station's APPROVAL conditions, including conditions and regulations for load checking program requirements. It shall operate the Transfer Station with sufficient trained staff and shall develop and maintain safety, hazardous waste exclusion, and other programs, rules and standards consistent with sound operating practice for similar facilities. WM warrants that it will comply with all applicable laws and regulations, as they, from time to time, may be amended, specifically including, but not limited to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901, Comprehensive Environmental Response, Compensation and Liability Act 42 U.S.C. §§ 9601 ("CERCLA"), the California Integrated Waste Management Act of 1989, codified in part at Public Resources Code §§ 40000 et. seq., ("AB 939"), the Carpenter-Presley-Tanner Hazardous Substance Account Act, codified at California Health & Safety Code §§ 25300 et seq ("HSSA"), Cal Recycle requirements and all other applicable laws and regulations of the United States, the State of California, the County of Los Angeles, the rules of the Air Quality Management District applicable to operators of refuse transfer facilities and material recovery facilities and operators of fleets of refuse transfer vehicles, as such rules may be adopted or amended during the term of this Agreement, ordinances of the CITY and the requirements of local enforcement agencies and all other agencies with jurisdiction. WM shall at all times during the period of this Agreement, operate its fleet of refuse transfer trucks, if any, in full compliance with all applicable rules and regulations. 45635.0181715878572.4 4 9. INSURANCE AND INDEMNIFICATION A. Indemnification. 1. WM shall indemnify, defend, protect and hold harmless CITY, its elected officials, officers, employees, volunteers, agents, assigns and any successor or successors to City's interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorney and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever (collectively, "Claims") paid, incurred or suffered by, or asserted against, CITY or its elected officials, officers, employees, volunteers or agents arising from or attributable to this Agreement, or arising from or attributable to any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether undertaken due to governmental action) concerning any hazardous waste received at the Transfer Station which is or has been transported, transferred, processed, stored, or disposed of by WM, or arising from or relating to WM's activities pursuant to this Agreement which result in a release of a hazardous waste into the environment, including but not limited to Claims arising out of any actual or alleged violation of any applicable law or regulation. This indemnity is intended to operate as an agreement pursuant to § 107(e) of CERCLA, 42 U.S.C. § 9607(e) and California Health and Safety Code § 25364, to defend, protect, hold harmless and indemnify CITY from all forms of liability under CERCLA, RCRA, other statutes or common law for any and all matters addressed, and shall be limited to the extent of the CITY's liability. This provision shall survive the expiration of the Agreement. 2. Additional Indemnification Obligations. In addition to the indemnification obligations created above, WM shall indemnify, defend, protect and hold harmless CITY, its elected officials, officers, employees, volunteers, agents, assigns and any successor or successors to City's interest from and against all claims, actual damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorney and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever (collectively, "Claims") paid, incurred or 4563 5.01817\5878572.4 5 suffered by, or asserted against, CITY or its elected officials, officers, employees, volunteers or agents (except for Claims arising out of the negligence or willful misconduct of the City, its officials, officers, employees, volunteers or agents) arising from or attributable to WM's operation of the Transfer Station, or WM's transportation, transfer, processing, storage, or disposal of any solid waste received at the Transfer Station by WM pursuant to this Agreement; including but not limited to Claims arising out of any actual or alleged violation of any applicable law or regulation. B. Workers' Compensation and Employers' Liability Insurance WM shall obtain and maintain in full force and effect throughout the entire term of this Agreement full workers' compensation insurance and Employers' Liability Insurance with a minimum limit of FIVE MILLION DOLLARS ($5,000,000.00) in accord with the provisions and requirements of the Labor Code of the State of California. Copies of policies and endorsements that implement the required coverage shall be filed and maintained with the City Clerk throughout the term of this Agreement. The policy providing coverage shall be amended to provide that the insurance shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days (ten (10) days for non-payment) prior written notice by certified mail, return receipt requested, has been given to CITY. The policy shall also be amended to waive all rights of subrogation against the CITY, its officers, board members, employees & trustees for losses which arise from work performed by the named insured under this Agreement. C. Liability Insurance. WM shall obtain and maintain in full force and effect throughout the entire term of this Agreement a Broad Form Comprehensive General Liability (occurrence) policy with a minimum limit of TEN MILLION DOLLARS ($10,000,000.00) aggregate and TWO MILLION DOLLARS ($2,000,000.00) per occurrence and a Commercial Auto Liability Insurance policy with a minimum limit of FIVE MILLION DOLLARS ($5,000,000.00). Said insurance shall protect WM and CITY from any claims for damages for bodily injury, including accidental death, as well as from any claim for property damage which may arise from operations performed pursuant to this Agreement. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. General liability coverage can be provided in the form of an endorsement to the CONTRACTOR'S insurance, or as a separate owner's policy. The following language is required to be made a part of all of the insurance policies required by this Section: 1. "The City of Azusa, its officers, employees, agents, and volunteers are hereby added as insured's with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of WM; and with respect to liability arising out of work or operations performed by or on behalf of WM 45635.01817\5878572.4 6 including materials parts or equipment furnished in connection with such work or operations". 2. "When this endorsement applies, such insurance as is afforded by the general liability policy is primary insurance and other insurance shall be excess to the insurance afforded by this endorsement." 3. "This policy shall act for each insured, as though a separate policy had been written for each. This, however, will not act to increase the limit of liability of the insuring company." 4. "Thirty (30) days prior written notice by certified mail, return receipt requested, shall be given to the City of Azusa in the event of suspension, cancellation, reduction in coverage or in limits or non-renewal of this policy for whatever reason. Ten (10) days written notice by certified mail, return receipt requested shall be.given to the City of Azusa in the event of suspension due to non payment. Such notices shall be sent to the City Manager, City Attorney and City Clerk." The insurance required by this Agreement shall be with insurers which are Best A- rated, or better, and California-Admitted, although WM shall have the right to request that a lower rated or non-California Admitted insurer be considered, which CITY may or may not approve. The CITY shall be included as an additional insured on each of the policies and policy endorsements. The insurance required by this Agreement is in addition to, and not in lieu or limitation of, the indemnification provisions above, and shall not act to limit WM's obligations under the indemnification provisions. D. Evidence of Insurance Coverage. WM shall file copies of the executed endorsements evidencing the above required insurance coverage with the City Clerk. In addition, CITY shall have the right of inspection of all insurance policies required by this Agreement. WM also agrees to establish an insurance policy repository and to maintain copies of insurance policies required pursuant to this Agreement for twenty-five years (25 years) after the end of the term during which collection services are to be provided pursuant to this Agreement. E. Self Insurance To the extent provided by law, all or any part of any required insurance may be provided under a plan of self-insurance approved by the State of California. F. Subcontractors WM shall include all subcontractors as insured's under its policies or shall obtain separate certificates and endorsements for each subcontractor. G. Modification of Insurance Requirements. 45635.0181715878572.4 7 The insurance requirements provided in this Agreement may be modified or waived by CITY, in writing, upon the request of WM if the CITY determines such modification or waiver is in the best interest of CITY considering all relevant factors, including exposure to CITY. H. Rights of Subrogation All required insurance policies shall preclude any underwriter's rights of recovery or subrogation against CITY with respect to losses which arise from work performed by WM under this Agreement, with the express intention of the parties being that the required insurance coverage protects both parties as the primary coverage for any and all losses covered by the above described insurance. WM shall ensure that any companies issuing insurance to cover the requirements contained in this Agreement agree that they shall have no recourse against CITY for payment or assessments in any form on any policy of insurance with respect to losses which arise from the work performed by WM under this Agreement. The clauses 'Other Insurance Provisions' and 'Insured Duties in the Event of an Occurrence, Claim or Suit' as it appears in any policy of insurance in which CITY is named as additional insured shall not apply to CITY. 10. PREVAILING PARTY The prevailing party in any legal action commenced in relation hereto shall be entitled, in addition to any damages or other relief granted by the court, to recover its reasonable costs of prosecuting or defending any such action from the non-prevailing party including attorney's fees, court and other costs. If the legal action involves a number of separate claims and the decision of the court. is partly in favor of one party and partly in favor or the other, then each party shall pay its own legal costs. 11. TERMINATION; DEFAULT The failure of WM to comply with the terms and conditions of the Agreement, and the ordinances and applicable codes of the City or the laws, rules or regulations of the State of California or the United States of America, shall constitute a default. In the event of such a default, City shall notify WM, in writing, of the specific nature of the default. WM shall have thirty (30) days from the date of notification to provide a means of curing the default satisfactory to City. In the event that the default continues longer than thirty (30) days after the date of notification, City shall have the right to terminate this Agreement by giving WM thirty (30) days written notice of such termination and termination may result in the termination of the related entitlements necessary to continue operating. 12. INDEPENDENT STATUS 45635.0181 n5878572.4 $ WM is an independent entity and not an officer, agent, servant or employee of CITY. WM is solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership or joint venture between CITY and WM, nor an arrangement for the disposal of hazardous substances. Neither WM nor its officers, employees, agents, or subcontractors shall obtain any rights to retirement or any other benefits which accrue to CITY employees. 13. PROPERTY DAMAGE Any physical damage caused by the negligent or willful acts or omissions of employees of WM to public or private property shall be repaired or replaced by WM at WM's sole expense. 14. MODIFICATIONS CHANGES OR AMENDMENTS This Agreement constitutes the entire agreement between the CITY and WM and no alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the Parties hereto. 15. ASSIGNMENT This Agreement shall not be assigned without the express written consent of the Parties. 16. JURISDICTION AND VENUE This Agreement is to be construed under the laws of the State of California. The Parties agree to the jurisdiction and venue of the appropriate courts in the County of Los Angeles, State of California. 17. WAIVER Any failure by CITY at any time to enforce or require the strict keeping and performance by WM of any of the terms or conditions of this Agreement shall not constitute a waiver by CITY of any subsequent or other breach of the same or any other term hereof. 18. BINDING ON SUCCESSORS WM, its successors in interest and assigns shall be bound by all the provisions contained in this Agreement, and all of the Parties thereto shall be liable hereunder. 19. INTERPRETATION Since the parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not.strictly for or against any party. Any term 45635.0181715878572.4 9 referencing time, days or period for performance shall be deemed calendar days and not work days. All references to WM include all personnel, employees, agents, and subconsultants of WM, except as otherwise specified in this Agreement. All references to CITY include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 20. SEVERABILITY If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 21. SIGNING AUTHORITY WM warrants that their respective undersigned representatives have been duly authorized to execute this Agreement on behalf of WM, and WM hereby waives any right to assert that this Agreement is void or invalid as a result of an unauthorized signature by their respective representatives. 22. NOTICES Notices and payments shall be sent to WM addressed as follows: Azusa Land Reclamation Company 1211 W. Gladstone Avenue Azusa, CA 91702 Attn: District Manager With copy to: Waste Management-Western Group 7025 N. Scottsdale Rd., Suite 200 Scottsdale, AZ 85253 Attn: Group Legal Counsel Notices shall be sent to the CITY addressed to the following: City of Azusa 213 E. Foothill Blvd. Azusa, CA 91702 Attn: City Attorney 45635.01817\5878572.4 10 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized officers on the date and year dated below. DATED: 12011 CITY OF AZUSA By: Mayor ATTEST: By: Approved as to Form: By: City Attorney DATED: 12011 AZUSA LAND RECLAMATION COMPANY By. Its: President ATTEST: By: Its: Secretary Approved as to Form: By: Legal Counsel 45 63 5.0181715 8 78 5 72.4 ) 4 - �r1t C` AZUSA 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 MANAGERt DATE: JULY 18, 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 July 12,2011,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 ACTIONIEFF RANGE/STEP DATE BASE MO SALARY UTL Micah Moore Apprentice Line Merit Increase 5204/5 Mechanic 06/26/2011 $6,632.43 UTL Leopoldo Water Production Merit Inc/Reg Appt 5185 Maldonado Operator II 07/26/2011 $4,647.60 UTL Ramon Office Specialist II Merit Increase 4143/4 Lomingkit 06/03/2011 $3,484.10 PD Amelia Magana Police Dispatcher Merit Increase 9166/5 07/07/2011 $4,754.78 B. PROMOTION—The following promotion(s)have been requested by the department head pursuant to the Rules of the Civil Service System. DEPARTMENT NAME CLASSIFICATION EFFECTIVE RANGE/STEP FROM/TO DATE BASE MO. SALARY PD Randy Schmidt From: Police Corporal 07/01/2011 6501/4 To: Police Sergeant $7,779.92 �l C. NEW APPOINTMENT: The following appointments have been requested by department heads pursuant to the Rules of The Civil Service System. DEPARTMENT NAME CLASSIFICATION EFFECTIVE RANGE/STEP DATE BASE MO. SALARY UTL Daryl Mosher Engineering Associate Pending 4222/1 Physical & $6,416.84 Background PD David Police Officer Pending 6101/5 Fawcett Physical & $6,691.99 Background FISCAL IMPACT There is no fiscal impact, as positions listed are funded in approved department budgets.