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Home My WebLink AboutJanuary 7, 2003O/ /p7�30o3 6 /i11 45:0001 CITY COUNCIL PROCEEDINGS ARE TAPE RECORDED AND ON FILE IN THE OFFICE OF THE CITY CLERK MINUTES CITY COUNCIL OF THE CITY OF ARCADIA and the ARCADIA REDEVELOPMENT AGENCY REGULAR MEETING January 7, 2003 The City Council and Arcadia Redevelopment Agency met in a Regular Meeting on Tuesday, January 7, 2003 at 5:30 p.m. in the Cay Martensen Auditorium, Arcadia Public Library, 20 West Duarte Road. ROLL CALL PRESENT: Council /Agency Members Chang, Kovacic, Segal, W uo and Marshall ABSENT: None AUDIENCE PARTICIPATION None. The City Council RECESSED to Closed Session. 1. CLOSED SESSION la. Pursuant to Government Code Section 54957 — City Manager Annual Performance Evaluation. 1b. Pursuant to Government Code Section 54956.9(c) to confer with legal counsel regarding potential litigation — one (1) case. 1c Conference with Re Property: Agency Negotiators Negotiating Parties: Under Negotiation: 2. al Property Negotiators per Government Code Section 54956.8 148 -158 West Las Tunas Drive (aka 141 West Live Oak Avenue Don Penman, Deputy Executive Director Roger Davila, American Senior Living, Inc. (dba: Arcadia Heritage Park, LLP) Diana Tse, Property Owner Price and Terms of Payment OPEN SESSION 2a. CENTENNIAL The City Council briefly discussed the 2003 Arcadia Centennial Celebration books currently in BOOKSAND preparation by Councilmember Kovacic and the Arcadia Weekly publisher, Von Raees. This PUBLICATIONS agenda item was continued to a date as yet undetermined for further discussion. The City Council RECESSED and RECONVENED at 6:30 p.m, in the Children's Imagination Theater, Arcadia Public Library, for a reception honoring the Holiday Home Awards recipients. The City Council then RECESSED at 6:45 p.m. and RECONVENED at 7:00 p.m. for a Regular Meeting in the Cay Mortenson Auditorium, Arcadia Public Library. LASER IMAGED 1/7/03 45:0002 INVOCATION Reverend Thomas Shriver, Emmanuel Assembly of God Church PLEDGE OF Fran Atwood - Zonver, Arcadia Beautiful Commissioner ALLEGIANCE ROLL CALL PRESENT: Councilmembers Chang, Kovacic, Segal, Wuo and Marshall ABSENT: None City Attorney Deitsch announced the subjects discussed at the Closed Session held earlier this evening. No reportable action was taken. 3. PRESENTATION HOLIDAY Arcadia Beautiful Commission Chairperson Dr. Richard Cordano, introduced the Commission HOME Members. Following the introductions, Commissioner Fran Atwood- Zonver, Chairperson, DECORATION Holiday Decoration Awards, and Councilmember Segal, Liaison, Arcadia Beautiful Commission, AWARDS presented the Holiday Home Decoration Awards to the following recipients: Residential Awards Terry and Mary Harmon 506 South First Avenue Jim and Daniel Graham 320 Vaquero Road Marie Nankani 166 West Naomi Avenue Odette Zaki 2430 South Second Avenue Eileen Wallo 300 East Newman Avenue The Telleria Family 231 Forest Avenue Gary and Carol Kearney 539 Catalpa Road Dino Rasmussen 533 Altura Road Grbavac Mladen 1235 Ramona Road The Lee Family 758 Singingwood Road The Sizer Family 2514 Albert Way Richard Searing 60 West Wistaria Avenue Business Awards: Dr. Dino Clarizio 1505 South Baldwin Avenue Block Awards The Marjorie Roos Family 505 North Old Ranch Road Pat Wallace 468 North Old Ranch Road Robert and Patricia Birmingham 828 Murietta Drive Diane and Martin Wood 827 Murietta Drive The Fricke Family 836 Murietta Drive Condominium Awards: Fairview Apartment Association 1014 -1024 Fairview Avenue Bernice Mehterian, Vice President Apartment Complex Award: 520 -526 Cornell Drive Everett Coker 4. SUPPLEMENTAL INFORMATION FROM STAFF REGARDING AGENDA ITEMS City Manager Kelly requested that Agenda Item 9a., Owner Participation Agreement for 54 -unit senior housing project at 150 W. Las Tunas Drive with Arcadia Heritage Park, L.P. be removed from tonight's agenda and be rescheduled for the January 21, 2003 meeting. 1/7/03 45:0003 City Manager Kelly presented a detailed report with regard to the windstorm that struck Arcadia on Sunday January 5, 2003. ORD. & RES.. It was MOVED by Mayor Pro tem Chang, seconded by Councilmember Segal and CARRIED that READ BY ordinances and resolutions be read by title only and that the reading in full be WAIVED. TITLE ONLY AYES: Ccuncilmembers Chang, Kovacic, Segal, Wuo and Marshall NOES: None ABSENT: None 5. PUBLIC HEARINGS 5a. THE SANTA Consideration of the report and recommendation to deny the appeal by the Santa Anita Oaks ANITA OAKS Homeowner's Association Architectural Review Board (ARB) to the Planning Commission's HOA'S ARB determination and approval of the homeowners' appeal, of the ARB's conditional approval of an APPEAL addition and remodel at 618 Gloria Road. (618 Gloria Rd.) (UPHOLD) ' The owners of property located at 618 Gloria Road, Mark and Alison Johnson, proposed a one - story addition and remodel. The existing two -car garage, which is attached to the rear of the house, would be converted and expanded into a master bedroom and bathroom, and a new attached three -car garage would be added to the front of the residence with a 16 -foot wide, two - car garage door facing the street. The proposed plans comply with the Citys Zoning Regulations. The Santa Anita Oaks Homeowners Association's Architectural Review Board (ARB) approved the proposed plans, subject to the condition that the garage remain in the rear yard. The Johnson's appealed this condition of approval to the Planning Commission. The Planning Commission approved the applicants appeal and determined that the ARB failed to properly act on the Design Review application within the thirty (30) working day period stipulated by City Council Resolution No. 5290 (The Santa Anita Oaks Resolution). The Planning Commission formalized their action by adopting Resolution No. 1682 on November 12, 2002. The Santa Anita Oaks Homeowners' Association ARB has appealed the Planning Commission's action. Mayor Marshall OPENED the public hearing. Mark Johnson owner, 618 Gloria Road, referred to City Council Resolution No. 5290, stating in part that, as required by resolution, a quorum was not present at the meeting at which the ARB considered the proposed addition and remodel. He felt that the remodel would be compatible with other homes in the area and remarked that none of the neighbors are opposed to the proposed addition. Thomas Beck 236 Hacienda Drive, served on the ARB for 10 years. Based on his experience and recollection, they have never allowed a garage to be located in the front yard. If they allowed this, it would open the door for other neighbors to request this also. He remarked that the ARB members are looking at what is best for the neighborhood. He felt strongly that they are working within the guidelines provided to them. Mr. Beck felt that this home should not have gone through the short review process. The short form is for minor projects and this is clearly not a minor project. In response to a Council question, Mr. Beck clarified that Mr. Potter, a long time resident, is a part of the ARB and has been to each and every meeting. They are unclear as to why his name was not on the ARB list. Further, it was noted that the ARB did not require the appellant to notify everyone in writing if an applicant has used the short form review. Short form review is for very minor changes. 1/7/03 45:0004 Jack Lynch 224 Hacienda Drive, Chairman, Architectural Review Board, stated in part that the applicant's architect was contacted and informed that this remodel was extensive and required the standard form and not the short form. The applicant indicated the reason why they submitted the short form is because this plan was previously approved, which was not correct. In response to a Council question, Mr. Lynch clarified that Mr. Potter has been a member of the ARB for many years and is present at all the meetings. At the ARB's annual meeting, Mr. Potter noticed that his name was not on the list of board members at which time he spoke up and was informed by Ms. Blackwood (Chairperson) that the issue would be investigated. Mr. Potter was never asked to step down. George Bennett 110 Orange Grove Avenue, stated in that he prepared the Santa Anita Homeowners' Associations May 19, 2002, Annual Meeting Minutes. Mr. Lynch asked him to take Mr. Perry's name off of the list of nominees for the ARB and add Mr. Pottter, but he misunderstood, which was the result of a lack of communication between Mr. Lynch and himself. He encouraged the Council to make the process work. He felt that the ARB process shouldn't be decided on technical matters. Nancy Dorn 1410 Rancho Road, an ARB member, referred to a letter to the Planning Commission dated September 11, 2002, from Mr. & Mrs. Johnson, stating, "four homes in the vicinity of the residence have garages or carports located in the front yard ". Ms. Dorn clarified, of those four properties, 610 Gloria has a ports co- chere, which, appears to be on the property line and an addition. 524 Gloria Road has a garage in the front, it was build in 1950, before there was an overlay zone and that garage is stepped back from the rest of the house by at least 10 feet. At 929 Gloria Road the garage totally faces the side yard, it does not face the front. The only house on the street that has a garage facing front is a newer house that was build in 1991. So, of the 30 homes there is only one garage facing the front. Larry Wilson 18 Woodland Lane, Vice President, Santa Anita Oaks Homeowners' Association, referred to Section 8 of Resolution No. 5290 stating "no structure, roof, wall or fences greater than two (2) feet above the lowest adjacent grade, shall be erected, placed or replaced unless approved by the Board ". The subject project was not approved by the ARB because the applicant did not submit the proper form. He felt that a simple solution would be to send this issue back to the ARB, conduct a hearing and make a rational decision on the design merits. William Corey 71 Hacienda Drive, felt it is clear from everything that has been said, the ARB, who is mandated to maintain the architectural integrity of the community has been trying to do its job. It seems that the Planning Commission, on a, procedural basis has rejected their appeal. He recommended that the City Council refer this matter back to the ARB, in order to go through a normal process and arrive at a logical conclusion. In response to a question from City Attorney Deitsch, Mr. Lynch explained the difference between a short and long form. The short form is a very simplistic form, which can be signed off by neighbors. The long form requires a meeting, and notices of the meeting have to be mailed to property owners within 100 feet of the subject property. Also, it was noted that with the short form the decision should be made within 10 days; where the long form allows 30 days. In rebuttal, the applicant, Mr. Johnson, said that he was never told that the application was improper and that the long form was required. 4 117103 45:0005 City Attorney Deitsch read for the record, a section of the letter which was submitted by the applicant to the City from the architect, "while Mr. Lynch and I discussed the project in general and his feelings about the proposed location of the garage, and while he did state that he would have to discuss it, further with other board members, I do not recall that I was informed that the short application submitted for review was inappropriate for the proposed project, as the project required no variances; intended compliance with all current zoning regulations; and is classified as a remodel and not a rebuild ". It was MOVED by Councilmember Segal, seconded by Mayor Pro tem Chang and CARRIED to CLOSE the public Hearing. In response to a Council query, City Attorney Deitsch explained in detail his interpretation of Section 11 a., page 4 of Resolution No. 5290. In his opinion, Section 11 a. interprets that the board should first decide whether an application merits the short review process, then delegate to the board chairman or another board member, the responsibility of rendering the decision on a short review process. In the discussion following close of the public hearing, Councilmember Segal proposed that the Council get themselves away from the legal process and look at what the intention of Resolution 5290 is, or establishment of ARB's and HOA's, and address that issue and move forward. In his opinion, the concept of these resolutions and Architectural Review Boards and. Homeowners Associations is to somehow control conformity in the various neighborhoods. Councilmember Kovacic is convinced that the action taken at the September 4, 2002, ARB meeting, was nothing more than a discussion and an advisory opinion, there was no He felt that this matter is not ripe because the applicant never filed the proper form, which is the long form. Until the long form is filed and a valid decision is made, the Council does not have any jurisdiction to decide whether it is a proper decision or not Considerable discussion ensued. Some members felt that the parties need to go back and repeat the process by submitting the proper form to the ARB for their consideration and decision; others spoke in favor of the applicant and felt that the applicant did not do anything wrong, he followed all procedures pursuant to Resolution No. 5290 It was MOVED by Councilmember Kovacic, seconded by Couhcilmember Wuo and CARRIED on roll call vote as follows to DETERMINE that the appeal by the ARB is appropriate; and, UPHOLD the appeal and refer the design review back to the ARB for consideration based on the established procedure for a long form. AYES: Councilmembers Kovacic, Segal, Wuo and Marshall NOES: Councilmember Chang ABSENT: None 5b. RESOLUTION Consideration of a proposed amendment to the Environmental Resources Section of the General NO. 6335 Plan setting forth watershed and storm water quality and quantity management considerations (General Plan . and policies per State regulations. Amendment 2002 -005) State regulations require that all cities include watershed and storm water quality and quantity (ADOPTED) management considerations and policies in their General Plan. In accordance with the State's requirements, the Development Services and Public Works Services Departments recommended changes to the Environmental Resources Section of the Arcadia General Plan. The National Pollutant Discharge Elimination System (NPDES) is a federal program intended to regulate the quality of storm water and urban runoff discharges into all waterways, rivers, lakes and oceans. The State of California administers the program locally through its regional water 5 117103 45:0006 quality control boards. The local agencies are required to comply with the permit issued by their respective regional board. The most recent permit, issued in December 2001, of the State of California Regional Water Quality Control Board, Los Angeles Region, requires that each local agency amend, revise or update its General Plan to add policies for storm water and urban runoff quality and quantity management. The proposed changes are outlined in the January 7, 2002 staff report and include the addition of a subsection, addressing. Storm Water and Urban Runoff Management and the addition of five (5) implementation strategies. The strategies reflect the requirements of the permit for new development such as permanent systems and/or controls to reduce pollutants from entering the storm drain system. Projects of less than one acre are exempt from the program at this time. The Planning Commission at its December 10, 2002 meeting held a public hearing on the proposed changes to the General Plan and recommended approval. The Development Services Department recommended approval of G.P. 2002 -005 and adoption of City Council Resolution No. 6335 entitled: "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, AMENDING THE ENVIRONMENTAL RESOURCES SECTION OF THE ARCADIA GENERAL PLAN TO INCLUDE WATERSHED AND STORM WATER QUALITY AND QUANTITY MANAGEMENT CONSIDERATIONS AND POLICIES PURSUANT TO STATE REGULATIONS" Mayor Marshall OPENED the public hearing. No one came forward to address the City Council and, it was MOVED by Mayor Pro tem Chang, seconded by Councilmember Segal to CLOSE the Public Hearing. It was MOVED by Mayor Pro tem Chang, seconded by Councilmember Segal and CARRIED on roll call vote as follows that RESOLUTION NO. 6335 be and is hereby ADOPTED. AYES: Councilmembers Chang, Kovacic, Segal, Wuo and Marshall NOES: None ABSENT: None AUDIENCE PARTICIPATION John Steelesmith Southern California Edison Company, Region Manager, Public Affairs, commended the City Manager and City staff for their outstanding service during the recent windstorm. He noted that because of the tremendous teamwork of City staff, the. Edison company would be able to complete the light pole replacements and power restoration in record - breaking time. 6. MATTERS FROM ELECTED OFFICIALS KOVACIC Councilmember Kovacic attended the Pasadena Tournament of Roses Parade and was very (Centennial proud of the Arcadia float and the High School Band. He encouraged everyone to keep a Calendar) Centennial Calendar on their desk and try to attend as many events as possible during this great celebration. (New Year) Mr. Kovacic wished everyone a happy, prosperous and healthy 2003. W UO Councilmember Wuo wished everyone a Happy New Year. (New Year) 1/7103 45:0007 (High School Mr. Wuo attended the Pasadena Rose Parade and he was also very proud of the Arcadia High Banc) School Band. (Power Councilmember Wuo expressed appreciation to the City Manager, the Fire and Police Chiefs, Outage) and City staff for their help, teamwork and protection during the windstorm and power outage. CHANG Mayor Pro tem Chang congratulated the recipients of the Holiday Home Decoration Awards. (Award Recipients) (Windstorm) Dr. Chang expressed concern and sympathy for the inconveniences and damages sustained by business' and residents along Live Oak Avenue and Las Tunas due to the fall of utility poles and trees caused by the windstorm. Dr. Chang commended the Edison Company workers and the City's Fire, Police and Public Works Services personnel for their prompt response and hard work. (Goals) Dr. Chang reported his goals for the new year as follows: (New Year) 1. Continue strong youth programs utilizing the allowable budget; MARSHALL 2. See the skate park built and renovation of Bonita Park completed; (Arcadia High 3. See a more definite plan for a youth center in Arcadia; School Band) 4. See the completion of the construction of the new police headquarters; (Captain 5. Start the remodeling of Fire Station Headquarters on Santa Anita Avenue; Shafer) 6. Establish a definite plan to remodel and upgrade the old City Hall; 7. See the groundbreaking and construction of Arcadia's first affordable Senior Housing project (Centennial on Live Oak Avenue; Celebration) 8. Approve some affordable family housing project; 9. Utilize some of the set aside funds to assist low income families for home improvement projects; Dr. Chang wished a Happy New Year to the City Council, City employees and citizens of Arcadia. SEGAL Councilmember Segal expressed appreciation to the Arcadia Beautiful Commissioners for their (Holiday effort on the Holiday Decoration Awards. Decoration) (Rose Parade) Mr. Segal thanked the President of the Rose Parade for giving Arcadia an opportunity to have a float in the Pasadena Rose Parade. (Rose Parade Mr. Segal expressed appreciation to Phoenix Decorating for building a very nice float. He also Float) thanked Santa Anita Race Track and the Methodist Hospital for sponsoring Arcadia 's float. (New Year) Mr. Segal wished everyone a happy and healthy New Year. MARSHALL Mayor Marshall congratulated the Arcadia High School Marching Band for well representing the (Arcadia High City of Arcadia in the Tournament of Roses Parade. School Band) (Captain Ms. Marshall referred to a telephone call from Captain Jon Shafer expressing his gratitude to the Shafer) Council and the City for allowing him the great honor of representing the City in the 2003 Rose Parade. (Centennial Ms. Marshall encouraged everyone to keep track of what is happening in Arcadia during the Celebration) Centennial Celebration year and join in. 7 1/7/03 45:0008 (Council Mayor Marshall noted that the City Council Chambers renovation project is moving quickly and Chambers) soon the Council will be able to hold its meeting in the updated Chambers. (Windstorm) Mayor Marshall appreciated the efficient and professional job provided by City staff in south Arcadia after the windstorm. (Food for Mayor Marshall shared a "food for thought". `Don't let yesterday's failures bankrupt today's Thought) efforts ". (New Year) Mayor Marshall also wished everyone a very Happy New Year. 7. THE CITY COUNCIL RECESSED TO ACT AS THE ARCADIA REDEVELOPMENT AGENCY ROLL CALL PRESENT: Agency Members Chang, Kovacic, Segal, Wuo and Marshall ABSENT: None AUDIENCE PARTICIPATION None. 8. CONSENT ITEM 8a. MINUTES It was MOVED by Agency Member Kovacic, seconded by Agency Member Segal and CARRIED (Dec. 11 Adj. & on roll call vote as follows to APPROVE the Minutes of the December 11, 2002 Adjourned Dec. 17 Reg. Regular Meeting and December 17, 2002 Regular Meeting. Mtgs.) AYES; Agency Members Chang, Kovacic, Segal, Wuo and Marshall NOES: None ABSENT: None 9. EXECUTIVE DIRECTOR 9a. OWNER Withdrawn. PARTICIPATION AGREEMENT (54 -Unit Senior Housing Proj. — 150 West Las Tunas Dr.) (CONTINUED TO 1- 21 -03) ADJOURNMENT The meeting of the Arcadia Redevelopment Agency ADJOURNED to 5:30 p.m. January 21, 2003 at Cay Martenson Auditorium, Arcadia Public Library, 20 West Duarte Road. 8 117103 45:0009 THE CITY COUNCIL RECONVENED 10. CONSENT ITEMS 10a. MINUTES APPROVED the Minutes of the December 11, 2002 Adjourned Regular Meeting and December (Dec. 11 Adj. 17, 2002 Regular Meeting. Reg. Mtg. & Dec. 17 Reg. Mtg.) 10b. ORDINANCE ADOPTED ORDINANCE NO. 2157 entitled: "AN ORDINANCE OF THE CITY COUNCIL OF NO. 2157 THE CITY OF ARCADIA, CALIFORNIA ADDING DIVISION 8 TO PART 2, CHAPTER 1, (Vicious and ARTICLE VI OF THE ARCADIA MUNICIPAL CODE REGARDING VICIOUS AND DANGEROUS Dangerous DOGS ". Dogs) 10c. MONETARY APPROVED the receipt of the $1,630.00 donation to the Arcadia Public Library from Starbucks GIFT and the Arcadia Firefighters Association. (Arcadia Public Library) 10d. COMPUTER AUTHORIZED a purchase of computer workstations from Dell Computer Corporation in the EQUIPMENT amount of $48,818.64; and, WAIVED the formal bidding process; and, AUTHORIZED a PURCHASE cooperative purchase using the Western States Contracting Alliance bid for computer equipment (Various Depts.) and related peripherals. 10e. PROF. SVCS. AWARDED a Professional Services Agreement in the amount of $65,233 to Lee & Ro, Inc. for AGREEMENT construction inspection services for the Chapman Well No. 7 Wellhead Facilities Project; and, (Chapman Well AUTHORIZED the City Manager and City Clerk to EXECUTE a contract in a form approved by No. 7) the City Attorney. 1 Of. PROF. SVCS. AUTHORIZED the City Manager to enter into an agreement in the amount of $30,000 with AGREEMENT Chapple Design Studio for the creation of Peacock Corner — Phase II Bronze Sculpture; and, (Peacock ALLOCATED an additional $5,000 from the Capital Outlay Fund. Corner — Phase II) 10g. AWARD AWARDED a contract to National Plant Services, Inc. in the amount of $60,000 for the 2002 - CONTRACT 2003 annual CCTV sewer inspection project; and, AUTHORIZED the City Manager and City (Annual CCTV Clerk to EXECUTE an agreement in a form approved by the City Attorney. Sewer Inspect.) In response to a Council question staff stated in part, that because the bid price came in higher than the budgeted figure, the bidder agreed to reduce the amount of work that will be required. 9 1/7/03 45:00011 1 Oh. AWARD AWARDED a contract in the amount of $104,600.00 to D &J Foothill Electric for the installation of CONTRACT new parking lot and emergency connection for the Community Center; and, WAIVED any (Parking Lot & informality in the bid or bidding process; and, AUTHORIZED the City Manager and City Clerk to Emergency EXECUTE a contract in a form approved by the City Attorney. Electrical Connect. — Community Center) 10i. S.G. VALLEY APPOINTED Roger Chandler to a four -year term as the City of Arcadia's delegate to the San MOSQUITO& Gabriel Valley Mosquito & Vector Control District Board of Trustees. VECTOR CONTROL (Chandler) 10j. PROF. SVCS. AUTHORIZED the City Manager to enter into a Professional Services Agreement with Moreland AGREEMENT & Associates, Inc. in an amount not to exceed $23,000.00 for GASB 34 Infrastructure Valuation (GASB 34 Services. Infrastructure Valuation Svcs.) 10k. RESOLUTION ADOPTED RESOLUTION NO. 6338 entitled: "A RESOLUTION OF THE CITY COUNCIL OF NO. 6338 THE CITY OF ARCADIA, CALIFORNIA, ADOPTING THE CITY OF ARCADIA FARE (Arc. Transit INCREASES AND SERVICE REDUCTIONS POLICY RELATING TO ARCADIA TRANSIT DIAL - Fare & Service A- RIDE ". Changes) 101. RESOLUTION ADOPTED RESOLUTION NO. 6337 entitled: "A RESOLUTION OF THE CITY COUNCIL OF NO. 6337 THE CITY OF ARCADIA, CALIFORNIA, AUTHORIZING THE FILING OF A LAWSUIT (Joint Litigation CHALLENGING THE STORM WATER/URBAN RUNOFF PERMIT FOR THE COUNTY OF LOS With CPR) ANGELES AND THE INCORPORATED CITIES THEREIN, EXCEPT THE CITY OF LONG BEACH (NPDES NO. CAS004001) "; and, APPROPRIATED $3,000 ($1,500 from each of the General Fund and Water Fund reserves) to pay for the initial cost of this action. 10m. PROF. SVCS. AWARDED a Professional Services Agreement in the amount of $34,000 to Lee & Ro, Inc. for AGREEMENT engineering design services for the design of the Wilderness Park Pump Station and Pressure (Engr. Design Pipeline; and, AUTHORIZED the City Manager and City Clerk to EXECUTE a contract in a form Svcs. — approved by the City Attorney. Wilderness Pk. Pump Station & Pressure Pipeline) THE PRECEDING CONSENT ITEMS 10a, b, c, d, e, f, g, h, i, j, k, I and m APPROVED ON MOTION BY COUNCILMEMBER KOVACIC, SECONDED BY MAYOR PRO TEM CHANG AND CARRIED ON ROLL CALL VOTE AS FOLLOWS: 10 1/7103 n1 � 45:00011 AYES: Councilmembers Chang, Kovacic, Segal, Wuo and Marshall NOES: None ABSENT: None ADJOURNMENT At 9:46 p.m. the City Council Regular Meeting ADJOURNED to January 21, 2003 at 5:30 p.m. in the (Jan. 21, 2003) Cay Mortensen Auditorium, Arcadia Public Library, 20 West Duarte Road, for a Regular Meeting to conduct the business of the City Council and Arcadia Redevelopment Agency and any Closed Session necessary to discuss personnel, litigation matters or evaluation of properties. June D. Alford, i lark 11 1/7/03 19116 714003 52 des 63 ' f�. Tr "M Fq�e STAFF REPORT Development Services Department Date: January 7, 2003 To: Mayor and City Council From: Don Penman, Assistant City Manager /Development Services Director By: Martha Eros, Transportation Services OfficeO(,VI Subject: Arcadia Transit Fare and Service Changes Policv Recommendation: Adopt Resolution No. 6338 adopting a formal policy establishing public comment process for fare and service changes affecting. Arcadia Transit dial -a -ride. SUMMARY Per Federal Transportation Administration ( "FTA ") regulation FTA C 9030.1 C, all entities receiving Federal transit funds must have a written policy certifying procedures for soliciting and considering public comment prior to raising transit fares or decreasing transit service. BACKGROUND Since its inception in 1975, the City of Arcadia has received federal funding to operate the Arcadia Transit dial -a -ride service and to purchase transit vehicles. During its 27 -year history, Arcadia Transit has expanded its use of four - passenger sedans to a fleet of 18 Class C buses that carry 9 to 20 passengers, thus increasing the level of service to the community. Passenger fares remained the same for 26 years, and in August 2001 the Arcadia City Council approved a 25 -cent fare increase from 75 -cents to $1.00 per one -way trip to the general public rate: The $1.00 general public fare was implemented in September 2001. The established fare of 25 -cents per one -way trip for senior citizens and persons with disabilities was not altered and remains at 25- cents. Arcadia Transit currently provides an average of 14,000 passenger trips per month and the City subsidizes approximately $6 per trip. DISCUSSION FTA circular number FTA C 9030.1C, Ch. V. 5.o (a. V -9) requires that all entities receiving federal funds must have a "locally developed process to solicit and consider public comment before raising a fare or carrying out a major reduction of transportation ". 'FTA C 9030.1 C, Ch. V, 5o (p. V -9) circular available for review upon request.. LASER IMAG ED / The City of Arcadia currently abides by California Government Code §66016, Procedures for Adopting Various Fees, which outlines an agency's responsibilities and the time requirements for notifying the public with any proposed fare amendments. Arcadia Municipal Code 9293.4 - Notices (for Public Hearings) mirrors the California Government Code in respects to when comments will be solicited and how responses will be considered, but the text does not include language specific to Transit requirements. Per FTA guidelines, the City is not required to hold a Public Hearing, but it must offer the public an opportunity to voice comments and concerns. Furthermore, the City is not required to change its plans based on the responses received from the public, but it should give due consideration to all documented comments and concerns. Prior to - implementing the 25 -cent fare adjustment in September 2001, flyers announcing the proposed increne-were posted in each Arcadia Transit vehicle and displayed at the Arcadia Library, Community Center and City Hall. Additionally, Public Service Announcements were published in the Arcadia Newsletter and Arcadia' Weekly announcing the change in the general public rate. City staff did:not receive any verbal inquiries or written comment cards requesting additional information pertaining to the fare increase or the City Council meeting. The City Council unanimously approved Resolution No. 6256 on August 16, 2001, and the general public fares were adjusted the following month. Staff Is confident the City has complied with the full intent and meaning of the FTA guidelines, however a written policy adopted by the Arcadia City Council is required. ENVIRONMENTAL IMPACT Not applicable. FISCAL IMPACT None. RECOMMENDATION Adopt Resolution No. 6338 adopting a formal policy per Federal Transportation Administration regulations establishing procedures for public comment process for fare and service changes affecting Arcadia Transit dial -a -ride. - Approved by: William R. Kelly, City Manager Attachment: 1. Resolution No: 6338, Public Comment for Fares and Service Changes 2. Public Comment Process for Fare and Service Changes Policy a,WR'✓ 1 1 � r { i ti ,-onr f. 07 -(i-, �� rru ari f RESOLUTION NO. 6338�� A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, ADOPTING THE CITY OF ARCADIA FARE INCREASES AND SERVICE REDUCTIONS POLICY RELATING TO ARCADIA TRANSIT DIAL -A -RIDE . WHEREAS, the City of Arcadia receives federal transportation funds to operate Arcadia Transit dial -a -ride service; and WHEREAS, the Federal Transportation Administration ( "FTA ") requires all entities receiving Federal transit funds to have a written policy certifying procedures for soliciting and considering public comment prior to raising transit fares or decreasing transit service. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. The City Council hereby adopts the Arcadia Transit — Public Comment Procedures for Fare Increases and Service Reductions policy relating to Arcadia Transit dial -a -ride service, attached hereto as Exhibit "A ". [Signatures on next page] LASERIMAGED y? 0 0 SECTION 2. The City Clerk shall certify to the adoption of this Resolution. Passed, approved and adopted this 7th day of January 2003. /S/ GAEL A. MAW HALL Mayor of the City of Arcadia ATTEST: City Clerk of the City of Arcadia APPROVED AS TO FORM: C& 0- 4Q44 City Attorney 2 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) SS: CITY OF ARCADIA ) I, JUNE D. ALFORD, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolution No. 6338 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 7th day of January, 2003 and that said Resolution was adopted by the following vote, to wit: AYES: Councilmember Chang, Kovacic, Segal, Wuo and Marshall NOES: None ABSENT: None /s JU City Clerk of the City of Arcadia 3 ARCADIA TRANSIT PUBLIC COMMENT PROCEDURES FOR FARE INCREASES AND SERVICE REDUCTIONS This policy delineates the Public Comment process for Arcadia Transit when proposed rate increases or service reductions affect the operation of the dial -a- ride system. Pursuant to Federal Transportation Administration (FTA) regulation C 9030.1C, a public comment period must be made available to the general public prior to implementing any changes to the transit system, i.e. raising transit fares or decreasing transit service. Public comment is not necessary if fares are decreased or service is increased /expanded. Per FTA guidelines, the City is not required to hold a Public Hearing, but it must offer the public an opportunity to express comments and concerns. Furthermore, the City is not required to change its plans based on the responses received from the public, but it should give due consideration to all documented comments and concerns. The City of Arcadia will record and archive all public notices, public hearing transcripts, letters from the public, summaries /minutes of public meetings, and all other pertinent documents as presented, for public audit. Procedures for Fare Increases and Service Reductions Prior to any proposed increase in fares or reduction in service affecting Arcadia Transit dial -a -ride, the City of Arcadia shall provide the public with an opportunity to express and document their comments, 2. Legal notice describing a proposed fare increase or service reduction must be published a minimum of not less than ten (10) days before formal action is taken at a public meeting conducted by the City Council to adopt a rate or service amendment, 3. Notice must appear in a newspaper of general circulation, or specific local publication servicing areas affected by the change, 4. Notices with proposed changes will be posted in all transit vehicles and customer service areas (i.e., City Hall, Arcadia Library, Arcadia Community Center), 5. Consideration must be given to views and comments expressed and submitted by the public in writing or verbally, 6. The City will accept written comments at or prior to the public meeting, in addition to public testimony at the public meeting, concerning fare increases or service reductions. EXHIBIT "A" SIZ Res {,33�j -� �, ��a/7"r GRAAL,T$� STAFF REPORT Public Works Services Department January 7, 2003 TO: Mayor and City Council FROM: Stephen P. Deitsch, City Attorney Pat Malloy, Public Works Services Director Prepared by: Susannah Turney, Environmental S rvices Officer SUBJECT: Resolution No. 6337 establishing an agreement to enter into joint Control Board Recommendation: Adopt SUMMARY Fifty -one local cities, Los Angeles County, the Building Industry Association, the Los Angeles Economic Development Corporation, Construction Labor and other interests, appealed the National Pollutant Discharge Elimination System ( NPDES) Permit (Storm Water Permit) adopted by the Regional Water Quality Control Board in December of 2001. The storm water permit imposes substantial, new; unfunded mandates, including the treatment of storm water to meet drinking water standards, upon the cities. The State Water Resource Control Board denied our appeal, without holding public hearings. The State Board's action has left the city with no other viable alternative, other than to file litigation in State court. The cities received this notice from the State Board on December 20 2002. Staff recommends that the City join with a suit with the cities of the Coalition for Practical Regulation (CPR) who are filing litigation on the storm water permit. BACKGROUND The City is required to obtain a NPDES (National Pollution Discharge Elimination System) Permit under the federal Clean Water Act, in order to discharge storm water from our community. The storm water permits are issued in five -year time increments. The City is currently implementing the third permit. Prior storm water permits focused the City's efforts on implementing cost - effective programs, such as increased street sweeping, catch basin cleaning, public education, waste -oil recycling programs, site visitations to our business community and construction site run -off mitigations. LASER IMAGED • Mayor and City Council January 7, 2003 Page 2 The latest storm water permit has "upped the ante" by incorporating prior Clinton Administration U.S. Environmental Protection Agency direction, requiring that our storm water not violate water quality standards (numeric limits) contained in the Water Quality Control Basin Plan for the Los Angeles Region. The Basin Plan was originally designed in 1973, setting numeric discharge standards for sewer treatment plants, oil refineries and factories. State regulators are now attempting to enforce numeric surface water quality standards on city storm water discharges. Recent guidance from the EPA in November of this year stated that municipal storm water permits "typically can be expressed in BMP's, and that numeric limits will be used only In rare instances" EPA recognized that storm water discharges due to rainstorms are "highly variable in _frequency _ and duration and are not easily characterized."' The agency believes that "only in rare cases will it be feasible or appropriate to :establish numeric limits" for municipal storm water discharges. The variability in the flood control system and minimal data available, "make it 'difficult to determine with precision or certainty actual or projected for the cities. A recent study by the University of Southern California (USC), commissioned by the Coalition of Practical Regulation (CPR), has verified that the NPDES Permit, combined with the Basin Plan and the TMDL Consent Decree, require the advanced treatment of storm -water and urban runoff. The USC study examined various rainfall and storm water plant scenarios, concluding that treatment costs will range between $44 billion to $284 billion for the Los Angeles region. Cost per household is estimated at $6,670 to $41,173, over a twenty -year period. The current permit in contention, does not allow fora legal Safe Harbor for the cities issued the permit.. This opens the City of Arcadia and others to extensive third -party litigation. DISCUSSION The State Board agreed to take up several of our issues in February of 2002. In correspondence dated February 25, 2002, the State Board wished to "simplify the petition process" and "inform the cities of the issues that the State Board intends to focus on in drafting an order." These issues included the compliance language and the iterative process, the prescriptive requirements, TMDL's, city storm water inspections and enforcement actions on private parties, costs of the municipal programs and the SUSMP development controls. These issues have not been properly addressed. The cities received this notice from the State Board on December 20t 2002. that the State Board has denied the CPR's Appeal without.a hearing. Mayor and City Councio January 7, 2003 Page 3 FISCAL IMPACT The cost of litigation for CPR cities is estimated at action is not budgeted in this years operating budget. $3,000 will need to be appropriated from the City's available). Staff recommends appropriating $1,500 Water Fund Reserves. 0 $3,000 per city. Funding for this Should the City join the litigation, fund reserves (sufficient funds are from both the General Fund and That the City Council adopt Resolution No. 6337 establishing an agreement to enter into joint litigation with the Coalition for Practical Regulation (CPR), following the denial of NPDES permit appeal by the State Water Resources Control Board and appropriate $3,000 ($1,500 from each of the General Fund and Water Fund reserves) to pay for the initial cost of this action. Approved: � William R. Kelly, City Manager SD:PM:ST:dw • RESOLUTION NO. 6337 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, AUTHORIZING THE FILING OF A LAWSUIT CHALLENGING THE STORM WATER/URBAN RUNOFF PERMIT FOR THE COUNTY OF LOS ANGELES AND THE INCORPORATED CITIES THEREIN, EXCEPT THE CITY OF LONG BEACH ( NPDES NO. CAS004001) 0 /% - 7103 RA X330 �}- Girf7gt� fi v4 W�Cp� WHEREAS, the California Regional Water Quality Control Board, Los Angeles Region ( "Regional Board ") adopted Order No. 01 -182, a National Pollutant Discharge Elimination System ( "NPDES ") Permit for Municipal Storm Water and Urban Runoff Discharges within the County of Los Angeles and the incorporated cities therein, except the City of Long Beach (hereinafter " NPDES Permit ") on December 13, 2001; and WHEREAS, in January of 2002, forty-nine cities ( "Cities "), including the City of Los Angeles, as well as the County of Los Angeles, filed administrative petitions with the State Water Resources Control Board ( "State Board ") challenging the validity of the NPDES Permit on a number of grounds, including its deletion of the "Safe Harbor" provisions that existed in the prior 1996 NPDES Permit, the modifications to the terms of the Permit dealing with Receiving Water Limitations and the requirement therein that would allow "numeric' limits to be imposed upon municipalities u LASER IMAGED �P compliance with the "maximum extent practicable" standard set forth in the Clean Water Act), as well as those provisions allowing for the automatic incorporation of total maximum daily loads ( "TMDL ") by the Regional Board's Executive Officer, the failure of the Regional Board to comply with the requirements of CEQA or to adopt terms consistent with CEQA, the imposition of additional inspection obligations on municipalities for various industrial and commercial facilities, and the attempt by the Regional Board to rollback the changes that had been made to the Standard Urban Storm Water Mitigation Plan requirements ( "SUSMP Requirements ") by the State Board, along with other objectionable terms, including various provisions which infringe upon the local land use authority of the Cities; and WHEREAS, although indicating in February of 2002 that it would address a number of substantive issues raised by the administrative petitions, on December 18, 2002, after three settlement negotiation sessions that did not lead to a resolution of the issues, the State Board denied all of the administrative petitions without providing a hearing to the public, and concluded that the Petitions "failed to raise substantial, new issues;" and WHEREAS, the City of Arcadia ( "City ") currently supports and funds efforts to reduce and eliminate storm water pollution. During the five 2 year period of the prior NPDES Permit, the City implemented additional street sweeping efforts, increased catch basin cleaning, funded a public information program on storm water pollution, implemented construction project inspection programs, implemented a Standard Urban Storm Water Mitigation Plan (the "SUSMP ") as modified by the State Board, completed the site visitation programs, initiated waste -oil recycling programs and implemented various other storm water programs; and WHEREAS, the NPDES Permit contains various language within the Receiving Water Limitations section (and other provisions of the Permit) which violate the "maximum extent practicable" standard, and which in many cases, directly or indirectly seek to impose responsibility on municipalities throughout the County, to insure that storm water runoff into and from their storm drain systems, does not violate water quality objectives, including numeric effluent limits that may be adopted through the incorporation of TMDLs; and WHEREAS, under the NPDES Permit, the City, along with 83 other incorporated cities in Los Angeles County and the County of Los Angeles, are required to expand existing storm water treatment programs, and to implement new storm water programs which the Regional Board purports 3 purports will improve the quality of municipal storm water in a cost- effective manner. However, a cost - benefit study was never performed by the Regional Board to illustrate that the new programs will result in cost- effective improvements to storm water quality. In addition, the Board did not develop or rely upon scientific data to support the need for the numerous programs to be imposed by the new Permit; and WHEREAS, under the new NPDES Permit, the City will be responsible for implementing a comprehensive inspection and surveillance program of industrial and commercial facilities to "control" storm water and non -storm water runoff from these facilities. A recent study ordered by the United States Congress and completed by the National Research Council of the National Academy of Sciences recommended that storm water programs utilize "adaptive implementation', and recognized that cities should not be subjected to fines and legal action while they are developing new and untested storm water programs. The new NPDES Permit may place the Cities in a constant state of violation, and will subject all municipalities covered by the Permit to needless lawsuits by environmental organizations, and exposing the Cities to excessive fines. The removal of the legal "Safe Harbor," combined with the addition of language putting the Cities in a 0 constant state of violation, is legally inappropriate and fundamentally unfair; M WHEREAS, the revised SUSMP Requirements under the new NPDES Permit are contrary to a prior order issued by the State Board, and require the imposition of mitigation measures that are contrary to existing State law under the California Environmental Quality Act, and the Permit terms infringe upon traditional local land use authority and the basic powers of local governments; WHEREAS, the NPDES Permit goes beyond the intent of the Clean Water Act, and violates the California Porter - Cologne Act, by "micro managing" and dictating specific programs and a particular manner of compliance on the Cities, and by imposing requirements that are not authorized anywhere under State or federal law; and WHEREAS, the new NPDES Permit requires that the Cities expand the current private property site visitation and education program to a mandatory inspection and enforcement program, that the Cities reduce pollutants in runoff from private industrial and commercial facilities (including federal and State facilities) and that the Cities modify their CEQA Guidelines and their General Plan requirements. All such requirements and 5 programs are being mandated on the Cities, without any provision for State funding; and WHEREAS, the actions taken by the Regional Board in adopting the NPDES Permit are inconsistent with the requirements of the Clean Water Act and State Law, will result in the imposition of unsupportable programs on the City and its citizenry, and will result in the imposition of numerous unfunded mandates on the City. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. To participate with other Cities in the County with the filing of a lawsuit challenging Regional Board Order No. 01 -182, NPDES Permit No. CAS004001, Waste Discharge Requirements for Municipal Storm Water and Urban Runoff Discharges within the County of Los Angeles and the Incorporated Cities therein, expect the City of Long Beach. SECTION 2. To retain Richard Montevideo, Esq., in coordination with other Los Angeles County Cities, subject to a retainer letter approved as to form and substance by the City Manager and City Attorney, to advise, assist and represent the City in the filing and in the prosecution of a lawsuit 6 challenging Regional Board Order No. 01 -182, the Municipal NPDES Permit for Los Angeles County and the incorporated Cities therein, except the City of Long Beach. SECTION 3 . The City Clerk shall certify to the adoption of this Resolution. Passed, approved and adopted this 7th day of January 2003. /S/ GAEL A. MSHAI.L Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: City Attorney 7 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) SS: CITY OF ARCADIA ) I, JUNE D. ALFORD, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolution No. 6337 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 7th day of January, 2003 and that said Resolution was adopted by the following vote, to wit: AYES: Councilmember Chang, Kovacic, Segal, Wuo and Marshall NOES: None ABSENT: None i *1 JUNE m: WOW City Clerk of the City of Arcadia E:3 r?SR. L01 % : c4er,n ea A �GweN # " ° °�po ATTI°��° STAFF REPORT Public Works Services Department January 7, 2003 TO: Mayor and City Council FROM: Pat Malloy, Public Works Services Dire for Prepared by: Gary F. Lewis, General Servic s Me ager Mark Rynkiewicz, Associate Engineer SUBJECT: Professional Services Agreement - Engineering services for the design of a sewer Pumping station and Pipeline Recommendation: Authorize the City Manager to enter into a Professional Services Agreement in the amount of $34,000 with Lee & Ro, Inc. SUMMARY The Wilderness Park Pumping Station and Pipeline is budgeted in the 2002 -2003 CIP. The existing septic systems at Wilderness Park are in disrepair and must be replaced. However, the environmentally sensitive area of Wilderness Park has current environmental laws and permit restrictions prohibiting the repair or replacement of any septic system. Therefore, the only suitable solution is to construct a new sewer pumping station and pipeline that connects the park's sewer system to the City's sewer system located on Highland Oaks Drive. Staff conducted a Qualification Based Selection (QBS) process and received two (2) proposals to provide engineering design services for the Wilderness Park sewer pump station. Lee & Ro, who has successfully completed larger projects of this type for numerous cities in Southern California, submitted the successful proposal. Staff recommends that the City Council authorize the City Manager to enter into a Professional Services Agreement with Lee & Ro in the amount of $34,000 for the design of the Wilderness Park Pumping Station and Pipeline. BACKGROUND Currently, the septic system servicing the Wilderness Center at Wilderness Park is not functioning properly and is in need of replacement. Based on the current septic tank's proximity to the stream through Santa Anita Canyon and spreading grounds, a permit to replace the existing septic tank has been impossible to obtain. Staff has attempted for the past two (2) years to obtain a permit to replace the septic system but was rejected by the Regional Water Quality Control Board. Consequently, the construction of a sewer pumping station and pipeline from the park to the City's sewer main in Highland Oaks Drive is the only feasible option available to correct the current sewage disposal problem. LASER IMAGED C6N. b 3P Mayor and City Council January 7, 2003 Page 2 DISCUSSION The geographic location of the Wilderness Center in relation to existing gravity sewer facilities requires the design of a sewer pumping station. Current staff work loads and lack of experience with this type of facility will require the assistance of a team of design professionals familiar with this type of application. Request for proposals were sent to six (6) qualified engineering firms. Of the six (6), two (2) proposals were received, reviewed, evaluated, and ranked by staff in accordance with Chapter 10 of the California Government Code, Section 4526 -4529 with the following results: RANK FIRM LOCATION 1 Lee & Ro, Inc. Industry 2 Civiltec Engineering, Inc Monrovia Staff reviewed each proposal and ranked each firm according to experience, approach, and understanding of the project. Lee & Ro, Inc was rated the most qualified based on their successful completion of numerous sewer design projects, superior knowledge of Arcadia's sewer system, and thorough understanding of the project. The final phase of the selection process included staffs review of the cost proposal and negotiation of a satisfactory agreement with the consultant. Staff recommends that the City Council authorize the City Manager to enter into a Professional Services Agreement in the amount of $34,000 with Lee & Ro, Inc. for engineering design services for the design of a sewer pump station and pressure pipeline. ENVIRONMENTAL IMPACT This project meets the criteria for a Categorical Exemption. An Environmental Impact Study (EIS) or an Environmental Assessment (EA) will not be necessary. FISCAL IMPACT $150,000 is budgeted in the 2002 -2003 Capital Improvement Program for this project. Mayor and City Council January 7; 2003 Page 3 RECOMMENDATION 1. Award a Professional Services Agreement in the amount of $34,000 to Lee & Ro, Inc for engineering design services for the design of the Wilderness Park Pump Station and Pressure Pipeline. 2. Authorize the City Manager and City Clerk to execute a contract in a form approved by the City Attorney. Approved by: __ " William R. Kelly, City Manager PM:GL:TL:CL:dw 0 O f jo ?/dp03 R.TS 9 STAFF REPORT Development Services Department January 7, 2003 TO: Mayor and City Council FROM: Don Penman, Assistant City Manager /Development Services Director ` By: Donna Butler, Community Development Administrator SUBJECT: General Plan amendment G P 2002 -005 - Amending the Environmenta Puttees ucj JttltC natuiauvna Recommendation: Adopt City Council Resolution No. 6335 SUMMARY State regulations require that all cities include watershed and storm water quality and quantity management considerations and polices in their general plan. In accordance with the State's requirements, the Development Services and Public Works Services Departments are recommending the changes set forth in Exhibit A to the Environmental Resources Section of the Arcadia General. Plan. The Planning Commission at its December 10, 2002 meeting voted 5 -0 to adopt Planning Commission Resolution No. 1683 recommending to the City Council amendments to the environmental resources section of the Arcadia General Plan setting forth watershed and storm water quality and quantity management considerations and policies per state regulations. The Development Services Department is recommending approval of G.P. 2002 -005 as set forth below and adoption of City Council Resolution No. 6335. DISCUSSION The National Pollutant Discharge Elimination System (NPDES) program is a federal program intended to regulate the quality of storm water and urban runoff discharges into all waterways, rivers, lakes and oceans. The State of California administers the program locally through its regional water quality control boards. The local agencies are required to comply with the permit issued by their respective regional board. The most recent permit, issued in December 2001 by Order No. 01 -182 of the State of California LASER IMAGED Page .1 ® • RWQCB, Los Angeles Region, requires that each local agency amend, revise or update its General Plan to add policies for storm water and urban runoff quality and quantity management. The intent of the requirement is to emphasize the importance of -planning and management of storm water and urban runoff quality and quantity. This is not a new concept as the City has been applying these strategies on all new development projects for over, a year in conformance with the requirements of the program., The reasons for inclusion in the City's General Plan is to show the regional board that the City formally supports and promotes these strategies and to give the City a formally adopted document to support its administration of the program. The proposed changes are outlined in Exhibit A'and include the addition of a'subsection addressing Storm Water and Urban Runoff Management and the addition of five (5) implementation strategies. The strategies reflect the requirements of the permit for new development such as permanent systems and /or controls to reduce pollutants from" entering the storm drain system. These could include on -site retention basins, catch basin filters, partial treatment facilities or contribution to a regional solution: Projects of less than one acre are exempt from the program at this time.' ' The Planning Commision held a public hearing on the proposed changes to the General Plan on December 10, 2002 and recommended approval. ENVIRONMENTAL'ANALYSIS The proposed; General Plan amendments will not have ,a potential for causing a significant` "effect on'the environment and are, therefore, `categorically exempt from CEQA per Sections 16061(b)(3) and 15378(b)(2)'6f the California "Code of Regulations (CCR) Title 14, Chapter 3; Article 5. FISCAL IMPACT None RECOMMENDATION Adopt City Council Resolution No. 6335 amending the Environmental Resources Section of the Arcadia General Plan setting forth watershed and storm water quality and quantity management considerations and policies per"' 'state regulations. Attachments: 'Resolution No. 6335, including Exhibit A Approved by: "=► William R. Kelly, City Manager ..r�, { p c Page 2 Oi�o 33s- FrP 2oo2 -Qas RESOLUTION NO. 6335 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, AMENDING THE ENVIRONMENTAL RESOURCES SECTION OF THE ARCADIA GENERAL PLAN TO INCLUDE WATERSHED AND STORM WATER QUALITY AND QUANTITY MANAGEMENT CONSIDERATIONS AND POLICIES PURSUANT TO STATE REGULATIONS WHEREAS, the Development Services Department and Public Works Services Department initiated General Plan Change 02 -005 amending the Environmental Resources Section of the Arcadia General Plan to include watershed and storm water quality and quantity management considerations and polices in the General Plan; and WHEREAS, on December 10, 2002, a public hearing was held before the Planning Commission on said matter at which time all interested persons were given full opportunity to be heard and to present evidence; and WHEREAS, the Planning Commission voted 5 to 0 to adopt Planning Commission Resolution 1683 recommending to the City Council amendments to the Environmental Resources Section of the General Plan pursuant to State requirements; and WHEREAS, on January 7, 2003, the City Council held a public hearing on said General Plan Change; and WHEREAS, as part of the record of this hearing, the City Council reviewed and considered: 1. All staff reports and related attachments and exhibits submitted by the Community Development Division of the Development Services Department to the City Council; 2. The record of the Planning Commission hearing regarding General Plan Amendment GP 02 -005; 3. All information and material and documentation presented as part of the public testimony at the Planning Commission public hearing on December 10, 2002, including the staff report; and LASER IMAGED -1- 6335 S S' 10� E 0 WHEREAS, the above recitals are hereby incorporated as part of the findings set forth below. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The factual data submitted by the Development Services Department in the attached report are true and correct. Section 2. The City Council finds: 1. State regulations require that all cities include watershed and storm water quality and quantity management considerations and polices in their general plan. The amendments set forth in Exhibit A to the Environmental Resources Section of the Arcadia General Plan are reasonable and appropriate and meet the State regulations; and 2. The most recent permit, issued in December 2001 by Order No. 01 -182 of the State of California Regional Water Quality Control Board, Los Angeles Region, requires that each local agency amend, revise or update its general plan to add policies for storm water and urban runoff quality and quantity management; and 3. The approval of the proposed amendments to the General Plan will not be detrimental to the public health or welfare, or injurious to the property or improvements in any zone or vicinity. 4. The approval of the proposed amendments to the General Plan will not have the potential for causing a significant effect on the environment and the proposed amendments are, therefore, categorically exempt from CEQA per Sections 15061(b)(3) and 15378(b)(2) of the local CEQA Guidelines. Section 3. For the foregoing reasons, the City Council approves the amendments to the Environmental Resources Section of the Arcadia General Plan as set forth in Exhibit A Section 5. The City Clerk shall certify to the adoption of this Resolution. -2- 6335 0 Passed, approved and adopted this 7th day of January , 2003 ATTEST: City Clerk of the City of Arcadia APPROVED AS TO FORM: ti ,.; Stephen P. Deitsch City Attorney Mayor of the City of Arcadia -3- 6335 0 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) SS: CITY OF ARCADIA ) 0 I, JUNE D. ALFORD, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolution No. 6335 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 7th day of January, 2003 and that said Resolution was adopted by the following vote, to wit: AYES: Councilmember Chang, Kovacic, Segal, Wuo and Marshall NOES: None ABSENT: None City Clerk of the City of Arcadia al 4.0 Environmental Resources INTRODUCTION To ensure General Plan consistency, notes such as this one will be provided where issues contained in the Environmental Chapter are also discussed in other parts of the General Plan The availability of a clean, well- managed environment is an important factor in the desirability of a community. As development of Arcadia has neared build out, the role of environmental management in Arcadia has been changing. Arcadia's primary environmental concerns are no longer related to balancing preservation of significant environmental features with the need for urban residential and commercial development; today's environmental concerns center on the need to wisely manage the ongoing use of resources. Air Quality. Maximizing the quality of the air within the City through the attainment of State and Federal air quality standards. Biological Resources: Preserving the biological habitats of sensitive, threatened and /or endangered plant and animal species. Water Resources: Reducing the use of, and the future need jar, water resources. Mineral Resources: Ensuring that any future mineral extraction processes are conducted in such a way as to minimize adverse impacts on the environment. Open Space: Identification and preservation of open space lands within Arcadia Cultural Resources: Preservation of Arcadia's cultural and historic resources for future generations. Energy Resources: Reducing the use and depletion of non - renewable energy resources through the use of alternate fuels and energy reduction programs. Solid Waste Management. Reducing Arcadia's input into the regional waste stream and instilling community participation in source red uction and recycling. The environmental issues that Arcadia faces are not unique within the Southern California region. Many issues require regional or statewide action. Air quality and the long -term availability of adequate water supplies, for example, cannot be resolved by individual communities acting on their own. The primary responsibility for managing air quality and water supply lies with State and regional agencies. However, local agencies, such as the City of Arcadia, have the responsibility to assist these agencies in appropriately managing environmental resources through their local land use planning authority. LEGAL AUTHORITY The Environmental Resources chapter contains policies relating to seven eight major topics: Air Quality, Biological Resources, Water Resources and Conservation, Minerals Resources, Cultural Resources and Natural Open Space. All of these topics, with the exception of Storm Water and Air Quality (which is considered to be an optional ARCADL4 GENERAL PLAN 4 -1 Seplember 3, 1996 - (Rev.) 0 0 element) are required by the State to be discussed in the Conservation Element of the General Plan. Under State Law (Government Code Section 65302[d]), the, City is required to include a Conservation Element: `for the conservation, development and utilization of natural resources including water and its hydraulic force, forests, soils, rivers and other waters, harbors, fisheries, wildlife, minerals, and other natural resources. " Under State regulation, (NPDES Permit No. CAS00 -4001, Order No., 01 -182 Section D, 12 -a) all cities are required to: "include a watershed and storm water quality and quantity management considerations and polices... " in their general plan. Table 1 -A Index to the Location of State Mandated General Plan Issues Within the Arcadia General Plan included within the Introduction section of the General Plan provides an index reference to State General Plan requirements and indicates the section of the Arcadia General Plan under which each State requirement is fulfilled. GENERAL PLAN APPROACH ENVIRONMENTAL RESOURCES GOALS It is the goal of the City of Arcadia to: achieve air quality that is conducive to good health and enjoyment of the area's climate, and to assist in attaining Federal and State air quality standards; and • ensure the retention and proper stewardship of biological, energy, water, mineral and cultural resources located within the City. AIR QUALITY Issues Arcadia is located within the South Coast Air Basin (Basin), which includes Los Angeles and Orange Counties, as well as portions of Riverside and San Bemadino Counties. Although air quality within the region has improved in the last several years, local air quality measurements conducted from 1990 through 1994 show that ozone levels containue to exceed both the State and Federal air quality standards during portions of the year and State stanfards for particulate matter (PM10) have been exceeded approximately 46 percent of the time in five years of data. Although the City of Arcadia is committed to contributing to air quality improvements, the City is limited in the types of programs and policies that it can implement to achieve any substantial air quality benefits. Local air quality problems are largely the result of pollutants emitted upwind of Arcadia. In addition, Arcadia's air pollutant emissions are a minuscule portion of the total air pollution problem. (continued on next page)... ARCADIA GENERAL PLAN 4 -2 September 3, 1996 - (Rev) 0 0 _ 1 4.0 Environmental Resources General Plan Approach Since Arcadia is dependent on local water resources, the City recognizes the importance of the existing water resource system and will continue to take a comprehensive approach to the preservation of water resources within the planning area through a combination of land use controls, water conservation and urban runoff management. The City will fulfill its responsibility for the management of water resources within the planning area through implementation of NPDES requirements and the following concepts. Coordinate General Plan Build Out with Available Water Supplies As part of establishing a "build out" population for the Arcadia General Plan planning area, the City has defined the water supplies that can reasonably be made available to support new development in the foreseeable future. Land uses and intensities reflected on the General Plan land use map will result in a level of water consumption that is consistent with the availability of water supplies. Future development projects will be analyzed for their effect on long -term water availability to ensure that adequate water supplies will continue to be available to support existing uses within Arcadia. Storm water and Urban Runoff Management Issues Arcadia is located within the Los Angeles River Watershed, which drains storm water and urban runoff from approximately 832 square miles of land. The City of Arcadia is a co- permittee with the County of Los Angeles and 84 other municipalities in the National Pollutant Discharge Elimination System ( NPDES) permit, which regulates the quality of storm water and urban runoff discharges to the Municipal separate storm water system (MS4). The effect of pollutants in storm water and urban runoff can be significant. In the short term, litter and other pollutants carried by the water during a rain event, may be deposited on streets and sidewalks, creating unnecessary backups of water on City streets. Pollutants that make their way into the waterways and subsequently to the ocean, create a hazard to biological resources, threatening and endangering plan and animal species. General Plan Approach Stone water and urban runoff management reduces, the impact of pollutants on the urban landscape, recreational areas and open spaces. Unmanaged storm water and urban runoff can carry litter and pollutants into waterways, and subsequently the ocean, causing environmental harm, reduction of water quality, and reduces the integrity of natural drainage systems and water bodies. Careful planning and proper management of storm water and urban runoff will help create a community that is aesthetically appealing, as well as protecting the environment. ARCADIA GENERAL PLAN 4 -12 September 3, 1996— (Rev.) 0 0 Protect and Improve Area Water Quality Water quality concerns will be integrated into storm water management planning, ensuring that designs for urban runoff pollutant management are part of the overall planning and approval processes for new development proposals. Mitigation for pollutant and sediment loading will include. concepts of slowing water flows to enhance percolation and other filtering Best Management Practices, allowing them to work in harmony with the area's topography. Balanced with the need to provide adequate flood control, the City recognizes its responsibility to protect the quality of groundwater from the harmful effects of storm water runoff. The City will, therefore, fulfill its water quality responsibilities as a "co- permittee" under the Federal Clean Water Act, as amended, and implement the provisions of the National Pollution Discharge Elimination System (NPDES) by defining and requiring that "Best Management Practices" (BMP) be employed to improve the quality of storm water runoff from the storm drain system and City roadways. The City of Arcadia will also continue to monitor emerging technologies and techniques of minimizing water quality impacts from storm water runoff and require the implementation of new BMPs as they are devised. ARCADIA GENERAL PLAN 4 -12A September 3, 1996 — (Rev.) 0 is 4.0 Environmental Resources WATER RESOURCES ER -31 Ensure fulfillment of the City's responsibilities relative to the requirements of the County's NPDES permitting and implementing programs. ER -32 Minimize, to the maximum extent practicable, the impacts of storm water and urban runoff on the biology, water quality and integrity of natural drainage systems and water bodies. ER -33 Maximize to the extent practicable, the percentage of pervious surfaces to allow percolation of storm water into the ground. Design the streetscape to minimize, capture, and reuse storm water runoff. Where possible, provide planting spaces to promote the growth of healthy street trees while capturing and treating storm water runoff. ER -34 Minimize to the extent practicable, the amount of storm water directed to impervious surfaces, and to the municipal separate storm water system. ER -35 Require all new development and redevelopment projects to have storm water pollution prevention systems in place, including maximizing landscaped areas and providing areas for storm water storage and sedimentation. ER -36 Require new development projects to include permanent controls to reduce storm water pollutant loads from development sites including parking lots to the maximum extent practicable. Utilize proper storage, handling and site design techniques to avoid the contact of pollutants with storm water runoff. ER -37 Continue to implement the City's Water Conservation Plan contained in the Arcadia Municipal Code. Use xeriscapes to achieve similar benefits and reduce water use. ER -38 Facilitate public understanding of the need for water conservation by distributing water conservation information to the public as appropriate. ER -39 Maintain contingency plans for continuing water services in the event of large - scale emergencies. ER -40 Protect existing groundwater recharge capacities within formal recharge facilities, as well as within proposed development sites where such development could have a negative effect on groundwater recharge. ARCADIA GENERAL PLAN 4 -24 Seprembe. 3.1996- (Rev.) 4.0 ENVIRONMENTAL RESOURCES ER -41 Ensure that proposed development projects avoid degradation of groundwater quality. Utilize a combination of Better Site Design techniques with infill projects to minimize storm water runoff and maximize vegetated areas. Manage rooftop runoff via storage, reuse and/or redirection to pervious surfaces for storm water management and other environmental benefits. ER -42 Encourage the installation of efficient irrigation systems (e.g., drip irrigation, soil moisture sensors and automatic irrigation systems) which minimize runoff and evaporation and maximize the water that will reach the plant roots. ER -43 Parking lots, especially surface lots, should be minimized and designed to reduce, store and treat storm water runoff. Where site limitations or other constraints prevent full management of parking lot runoff, designers shall target high use areas first. NOTE: The remaining strategies in the Environmental Resources Section of the General Plan shall be renumbered to reflect the additional "Water Resources " strategies. ARCADIA GENERAL PLAN 4 -24A seprember 3, 1996 -ole .) F]❑❑ SK 0 syu 5'40 Sv br O q Re�j 1L STAFF REPORT Arcadia Redevelopment Agency January 7, 2003 TO: Arcadia Redevelopment Agency FROM: V Don Penman, Deputy Executive Director P L By: Pete Kinnahan, Economic Development Administrator SUBJECT: Owner Participation Agreement COPA ") for 54 -unit senior housing project at 150 W. Las Tunas Drive with Arcadia Heritage Park. L.P. for 100% affordable units (53) with an Agency loan of $1.8 million Recommendation: Approve SUMMARY After consideration of three affordable senior housing proposals, the Agency authorized staff to negotiate an Agreement with Arcadia Heritage Park, L.P., an entity majority - owned by American Senior Living ( "ASL ") for a 54 -unit project at 150 W. Las Tunas Drive (Attachment 1). Originally, twenty percent (20 %) or eleven (11) of the units were to be restricted to very low income people. ASL has since advised staff that they can construct a 100% affordable project (53 units; 1 manager unit) if the Agency increases its $1 million loan to $1.8 million. If the higher amount is approved, the Agency. per AB 637 would not be able to use its Housing Set Aside Funds ( "HSA ") for any other affordable senior projects for approximately twelve (12) years. The Agency's housing consultant, Keyser Marston Associates, has reviewed the respective pro formas for each option and concurs that either option is feasible and reasonable. Because of the significant increase in affordable units (42) with the 100% option, staff recommends that the Agency approve the 100% affordable option (53 units), appropriate $1.8 million in loan funds, and approve the Owner Participation Agreement ( "OPA ") with Arcadia Heritage Park, L.P. DISCUSSION The Agency at its October 15, 2002 Study Session preliminarily selected American Senior Living to develop a 3 -story 55,000 sq. ft. 54 -unit senior housing project (20% affordable) at 150 W. Las Tunas Drive. The Agency further directed staff to work with our housing consultant and a second proposer, Meta Housing, on a possible 109 -unit 20% affordable senior housing project (22 units) at 161 W. Colorado Place (Westerner Hotel), if there were sufficient HSA funds available. LASER IMAGED A 69 IF-&Z- F.Ifop Arcadia Redevelopment Age cy • January 7, 2003 Page 2 Since that time, Roger Davila of ASL has informed staff that he can apply for Los Angeles County HOME funds, which could'enable Arcadia Heritage Park, L.P. to construct a 100% affordable project (53 units). However, he would need approximately $1.8 million in loan funds from the Agency instead of $1 million for a 20% affordable project (11 units). These funds would be returned to the Agency as a residual loan over 30 years at 3% interest. "Residual" means the Agency would be repaid annually out of 50% of the available net cash flow`from the project (Los Angeles County gets repaid out of the net cash flow from the other 50 %). This amount can vary over the life of the loan, assuming there were no major financial setbacks to Arcadia Heritage Park, L.P. or the project. In such a case, the Agency's loan repayment would be in a lesser position. The owner, Arcadia Heritage Park, L.P., has agreed that if there are any unpaid principal and interest remaining, it will be paid by the end of year thirty (30). These repaid funds would have to be used for affordable housing. The Agency's housing consultant, Keyser Marston Associates, has reviewed the respective financial statements and pro formas of the two options and concurs that both are feasible and reasonable. Under the 100% affordable option ($1.8 million), the Agency will assist in the production of 53 units, an increase of 42 affordable units over the initial ASL proposal (11 units - $1 million), for only $800,000 more in loan funds. Sixteen (16) of the units would be for very low income seniors, 37 for low income. Per AB 637, the Agency can spend only that amount of its HSA funds as are in its population over 65 as by the 2000 census. That percent is 15.5 %. The statute also permits the Agency to estimate and to use its HSA funds twelve (12) years into the future, or until 2014, in this calculation. Staff has previously prepared such an estimate (Attachment 2) which conservatively indicates the Agency can allocate up to $1.8 million over twelve (12) years for affordable senior housing. If the Agency commits the full $1.8 million to Arcadia Heritage Park, L.P., there will be no other funds available for other senior projects, i.e., Meta. AB 637 also requires that the affordable units be restricted by covenant for 55 years. This covenant will be recorded on the property. The Agency is required to monitor the developer's compliance with this requirement annually. An Owner Participation Agreement ( "OPA ") and exhibits prepared by Best Best & Krieger ( "BBK ") has been negotiated with ASL (Attachment 3). All of the major terms are acceptable to ASL, the staff, and the Agency attorney. ASL must submit their application for Los Angeles County HOME funds by January 15, 2003. An approved agreement is a, requirement of their application. �.P' ; �t 13UI� , ,:��A Arcadia Redevelopmeagency • January 7, 2003 Page 3 DESIGN REVIEW The Planning Commission at their December 10 meeting approved ADR 2002 -040 and CUP 2002 -014 for ASL's project. The elevations and site plans are provided as Attachment 4 and the CUP conditions as Attachment 5. The proposed building will be a single 3 -story structure of approximately 55,000 sq. ft. including a 6,800 sq. ft. community room. Forty-five (45) units will be 1- bedroom (667 sq. ft.). Eight (8), including the manager's unit, will be 2- bedroom (955 sq. ft.). Each unit has a full kitchen and outdoor balcony. Fifty -eight (58) parking spaces will be provided. The 1.1 parking ratio is consistent with other senior projects. Decorative lighting has been recommended for the parking lots by the Planning Commission. A five foot eight inch (58 ") security fence will enclose the property on the west, south and north. Vines will be planted on the east to augment the chain -link fence along the easterly wash. A security gate will be recessed at the access driveways off of Las Tunas Drive and Live Oak Avenue. A minimum of fifty -six (56) trees will be planted on the site. The architecture is a Spanish /Mission style. The mass of the building is reduced by the building articulation, eliminating a flat continuous plane. The varied planes and projections on the building effectively reduce its mass and scale. Balcony enclosures have been added as well as random awnings to add variety and detail to the individual living units. The roof is flat, hidden by exposed mission tile mansards at the perimeter. The finish varies on the building with smooth /scored plaster to appear as large stone elements and other areas of plaster with a light sand finish. In addition, exterior wall colors vary with up to three colors to provide the appearance of individual "row house" living units. The choice of colors and materials complement one another and are compatible. Also, balcony enclosures, surrounds, railings and awnings vary to add the element of variety and detail. Horizontal molding creates a building base. Sign plans have not been provided at this time. Any proposed signs shall be subject to the review and approval of the Development Services Department. This design would be approved as part of the approval of the OPA. On a related issue, ASL is also seeking bond financing from the California Statewide Communities Development Authority (CSCDA, commonly called "California Communities "). The City Council will be conducting a noticed Public Hearing at their January 21, 2003 meeting on this topic. The City will be merely acting as a conduit for the developer. There is no liability for the City or Agency, and all bond - related documents will be approved by BBK. Arcadia Redevelopment Aggency • January 7, 2003 Page 4 Staff anticipates increasing_ interest from lower income seniors in becoming a tenant in the Heritage Park project. All names and addresses will be forwarded to the developer for initial recordation. However, final selection shall be based on criteria to be established by the City Council. (This must be consistent with federal and State Fair Housing laws and County Guidelines.) Staff will work with ASL on a Marketing and Selection Plan which encourages the placement of Arcadia residents in the project but meets all governmental requirements. ENVIRONMENTAL ASSESSMENT Because this is a low and very low income housing project, below 100 units on less than 5 acres, it is statutorily exempt from CEQA, per the California Public Resources Code Section 21080.14. 1 In addition, the Planning Commission at its December 10, 2002 meeting approved a Negative Declaration for the project. (The project is also being environmentally assessed by Los Angeles County under the federal N.E.P.A. guidelines). FISCAL IMPACT Staff is recommending payment of a 3% Residual Loan to Arcadia Heritage Park, L.P. in the amount of $1.8 million for a 100% affordable project (53 units). These funds will be paid back annually out of 50% of the net cash flow over a thirty (30) year period, and must be reused for affordable housing. An appropriation in this desired amount is needed from the Agency Housing Set Aside Fund. Payments of the $1.8 million will be made to the developer only upon completion of major milestones, e.g., 30% - payment of fees and beginning of foundation grading; 50% - issuance of Certificate of Occupancy; 20 %- 80% lease up of units. The Board will recall that the original concept was to loan $1 million to ASL for eleven (11) affordable units. The current plan with all units (53) affordable (except the on -site manager) will require an additional loan amount of $800,000, for a total loan of $1.8 million. This increase is recommended because it would increase the number of affordable units by forty -two (42) for only $800,000, resulting in an Agency subsidy of $36,962 per year ($1,800,000 + 53) compared to the original subsidy of $90,909 ($1,000,000 + 11). However, the Board should be aware that approval of a 100% affordable project will utilize all Housing Set Aside Funds for senior housing for the next twelve (12) years (estimate). As a practical matter though, providing only a $1 million loan for eleven (11) affordable units would not leave enough of a remaining balance ($800,000) to have much of an impact to facilitate a future senior project. Additionally, approval of 53 affordable units would help the City achieve its Housing Element goals, as well as meet the Agency's Replacement Housing requirement. Arcadia Redevelopmentgency • January 7, 2003 Page 5 RECOMMENDATION That the Agency authorize the expenditure of up to $1.8 million in Housing Set Aside Funds for American Senior Living for the design and construction of a 54- unit project ;. 53 units of which shall be affordable to persons of very low and low income, and, appropriate said amount;. and that the Agency authorize the Executive Director to execute the OPA (Attachment 4) subject to approval of the OPA as to form by the Agency attorney. Approved: William R. Kelly, Executive Director Attachment 1 — Site Map Attachment 2 — Proportionality Analysis Attachment 3 — Owner Participation Agreement (Full copy available from Development Services Dept.) Attachment 4 — Elevations and Site Plan Attachment 5 — CUP 02 -014 Conditions I IAI CD §� // kk 2& \k K§ /\ \� §� \� [ | § ! m 0 0 .•!!£ )72f�i� | |` @z || ||§8 )■ ƒ|�1 �� § -!•� |f .! � « |� ! ATTACHMENT 2 0 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The Arcadia Redevelopment Agency 240 West Huntington Drive Post Office Box 60021 Arcadia, California 91006 -6021 Attn: Executive Director E DISTRIBUTION DRAFT No. 2 DECEMBER 30 2002 NOTE: FULL COPIES OF THE OPA ARE AVAILABLE FROM THE DEVELOPMENT SERVICES DEPT. rFee Exempt -Govt Code '61031 (Space above for Recorder's Use) HERITAGE PARK. OWNER PARTICIPATION AGREEMENT/ LOAN AGREEMENT between THE ARCADIA REDEVELOPMENT AGENCY a public body, corporate and politic and AMERICAN SENIOR LIVING, INC a CALIFORNIA corporation [Dated as of JANUARY - 7, 200 3, for'reference purposes only] ATTACHMENT 3 RVPUBWCV�641834 0 0 PORATS STAFF REPORT December 10, 2002 Development Services Department TO: Arcadia City Planning Commission FROM: Donna Butler;,Sbmmunity Development Administrator SUBJECT: Conditional Use Permit No. 02 -014 and Architectural Design Review 2002 -040 148 -158 West Las Tunas Drive SUMMARY Conditional Use Permit application C.U.P. 2002 -014 and Architectural Design Review ADR 2002 -040 were filed by American Senior Living (ASL) and requests a conditional use permit to construct a 54 -unit senior apartment complex at 148 -158. West Las Tunas Drive. The Development Services Department is recommending approval of C.U.P. 2002- 014 and ADR 2002 -040 subject to the conditions in the staff report. GENERAL INFORMATION APPLICANT: American Senior Living LOCATION: 148 -158 West Las Tunas Drive REQUEST: A Conditional Use Permit to construct a three -story 54 -unit senior apartment complex with a minimum of 20% (11 units) to be affordable senior units. SITE AREA: The site is a through lot with frontage on both Las Tunas Drive and Live Oak Avenue and contains 64,783 square feet (1.49 acres). FRONTAGES: 161+ feet on Las Tunas Drive and 213+ on Live Oak Avenue ATTACHMENT 5 o • EXISTING LAND USE & ZONING: The site, commonly known as Marketowne, is developed with 15,000 sq. ft. of commercial buildings and is zoned C -2. SURROUNDING LAND USES & ZONING: North: Developed with single - family residential; zoned R -1. South: Developed with mixed use, commercial/industrial; zoned C -M East: Developed with the Arcadia Wash and mixed use commercial/ industrial; zoned C -M West: Vacant lot and Sav -On drugstore; zoned C -2 GENERAL PLAN DESIGNATION: The subject site is designated Commercial. BACKGROUND The Development Services Department and the City Redevelopment Agency have been working for over a.year with several developers interested in developing senior housing within the City of Arcadia. On July 5 the Agency sent request for proposals to three (3) senior housing builders. All three developers submitted proposals for three different locations: American Senior Living Marketowne site 54 units Corporation for Better Housing Former Mounted Police Site 55 units META Housing Westerner Hotel site 109 units Each company is an experienced affordable housing developer. The Agency Board at its October 15 study session, directed staff to proceed working with American Senior Living who is in escrow with the owners of the Marketowne property. PROPOSAL American Senior Living is proposing a 54 -unit senior apartment complex. A minimum of 11 apartments (20 %) will be affordable units. However, if additional funding is available all of the units may be affordable. Residents must be 65 years of age or older. Proiect Description The proposed building is three (3) stories containing 18,298 square feet of floor area. The first floor will consist of residential units, an office and a 6,762 square foot community room. The remaining floors will consist solely of residential units and will CUP 02 -014 December 10, 2002 PAnA 9 be accessed by an elevator. There will be 45 one - bedroom units and 9 two- bedroom units. The one - bedroom units contain 667 sq. ft. of floor area and the two- bedroom units contain 555 sq. ft. of floor area. Each unit has a full kitchen and an outdoor balcony. There are no congregate dining facilities provided. The overall building height is approximately 39' -0 ". The front entrance will be located on the east side of the building. An exterior courtyard with decorative paving and landscaping is proposed at the rear of the project (west side). The trash area is located on the southerly side of the building and is an integral part of the building structure. There is a minimum 20' -0" setback along Las Tunas Drive and a minimum 50'4" setback along Live Oak Avenue. The building is located along the westerly portion of the site and will maintain a setback ranging from 15' -0" to 39' -0" from the westerly property line. The building design is a Spanish /Mission style. A more complete architectural description is included under Architectural Design Review. Parking and Landscaping Fifty -eight (58) open parking spaces will be located to the east and south of the building (1.1 spaces per. unit). The parking spaces will be 10' x 20', consistent with the parking requirement in the R -3 zone. A 5'4" high wrought iron security fence with concrete pilasters will enclose the property along the westerly, southerly and northerly property lines. The existing chain link fence located along the wash will remain, but vines will be planted to screen the fence. Four (4) of the parking spaces will be located outside the security fence. The 1.1 parking ratio is consistent with the parking ratio requirements of other cities for senior projects. Access will be from two driveways, one on Las Tunas Drive and one on Live Oak Avenue. Decorative paving will be located at each driveway entrance as well as in front of the building entry. The security gates have been recessed off the streets to allow for on -site stacking of a few vehicles. An 8' -0" wide landscape buffer will be located along Live Oak Avenue and the easterly property line. The landscape buffer along Las Tunas Drive will range from approximately 6'-0" to 20' -0 ". The street trees shown on the landscape plan are inconsistent with the City's street tree planting plan. Street trees will be conditioned to be in compliance with the City's Street Tree Master Plan. The landscape plan shows a minimum of 56 trees on site. The size of the trees is not specified, however, specimen trees should be a minimum of 36" box and all other trees should be a minimum of 24" box. 1 °' CUP 02 -014 December 10, 2002 Para a 0 0 The final landscape plan will' be subject to the review of the City's landscape architect. The plans do not show parking lot lighting. Although' the code does not require it, staff would , recommend that decorative lighting standards be installed within the parking area to provide adequate lighting during the evening hours. The design and location of the light standards shall be subject to the review and approval of the Community Development Administrator. Architectural Design Review The architecture is a Spanish /Mission style. The mass of the building is reduced by the building articulation, eliminating a flat continuous plane. The varied planes and projections on the building effectively reduce its mass and scale. Balcony enclosures have been added as well as random awnings to add variety and detail to the individual living units. The roof is flat, hidden by exposed mission tile mansards at the perimeter. The finish varies on the building with smooth /scored plaster to. appear as large stone elements and other areas of plaster with a light sand finish. In addition exterior wall colors vary with up to three colors to provide the appearance of individual "row house" living units. The choice of colors and materials complement one another and are compatible. Also, balcony enclosures, surrounds;` railings and awnings vary to add the element of variety and detail Horizontal molding creates a building base. Sign plans have not been provided at this time. Any proposed signs shall.be subject to the review and approval of the Development Services Department. It is staffs opinion that the proposed architectural design concept is in compliance with the City's Architectural Design Review Regulations. The proposed design, materials and finishes are compatible with newer surrounding development and the proposed design elements provide the necessary architectural relief. Colored elevations and a color sample board will be available'for review at the meeting. The applicants shall be required to comply with all . Public Works Services Department, Building and -Fire Code requirements as determined necessary .by the Public Works Services Director, Building Official and Fire Prevention. ANALYSIS The C -2 zoning permits residential uses with an approved Conditional Use Permit. In addition, the City Council on October 15, 2002 adopted Resolution No. 6326.allowing up to 50 du/ac for market rate senior housing projects, and up to 63 du /ac for affordable senior housing projects as defined by the California Government Code on properties designated as Commercial in the General Plan. CUP 02 -014 December 10, 2002 Pane d The proposed project has a density of 36 dwelling units per acre that is consistent with the General Plan. It is staffs opinion that the proposed project is an appropriate use at this site. There is a need for senior housing within the community and the proposed project will accommodate this need. The location is advantageous for seniors because it is in close proximity to a.supermarket, several pharmacies and is on a bus route. CEQA Pursuant to the provisions of the California Environmental Quality Act, the Development Services `Department has prepared an initial study for the proposed project. Said initial study did not disclose any substantial or potentially substantial adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise and objects of historical or aesthetic significance. When considering the record as a whole, there is no evidence that the proposed project will have any potential for adverse effect on wildlife resources or the habitat upon which the wildlife depends. Therefore, a Negative Declaration has been prepared for this project. RECOMMENDATION The Development Services Department recommends approval of Conditional Use Permit No. CUP 02 -014 and Architectural Design Review No. 02 -040 subject to the following conditions: 1. That final plans shall be in substantial compliance with the plans on file in the subject cases, CUP 02 -014 and ADR 02 -040. 2. The project shall be approved by the Arcadia Redevelopment Agency. 3. A minimum of 20% of the units shall be "affordable" senior units as defined by State Redevelopment Law. All affordable units must be restricted to persons 65 years of age or older. The remainder of the tenants may a minimum of 62 years of age or older. 4. That an outdoor lighting plan, including decorative parking lot lighting shall be submitted to the Community Development Administrator for review and approval. 5. That the final landscape plans shall be submitted to the City's landscape architect for review. and approval. That all "specimen" trees shall be a minimum of 36" box and all other trees shall be a minimum of 24" box. Street trees shall be in compliance with the City's Street Tree Master Plan dated August 2001. CUP 02 -014 December 10, 2002 Panes F 6. All proposed signing shall be submitted for approval to the Development Services Department per the City's design review guidelines. 7. Prepare a storm water mitigation plan including the structural BMPS as required by SUSMP. 8. Prepare a local SWPPP for all construction activities as well as' complete all Storm Water forms. 9, That C.U.P. 02 -014 shall not take effect until the owner and applicant have executed a form available at the Community Development Division indicating awareness and acceptance of the conditions of approval. 10. Noncompliance with the provisions and conditions of this Conditional Use permit shall constitute grounds for the immediate, suspension or revocation of said Permit. FINDINGS AND MOTIONS Approval The Planning commission should move to adopt the Negative Declaration and approve CUP 02 -014 and direct staff to'prepare the appropriate resolution for adoption at its next meeting. Denial If the Planning Commission intends to deny this Conditional Use Permit application, the Commission should move for denial and direct staff to prepare a resolution that incorporates the Commission's decision and specific findings. If any Planning. Commissioner, or other interested party has any questions or comments regarding this matter prior to the December 10 public hearing, please contact Donna L. Butler at (626)574 -5442. Attachments: Land Use and Zoning Map Negative Declaration & Initial Study Applicant's plans . CUP 02 -014 December 10, 2002 Parma R I N 100 0 100 200 300 Feet my n (104 �+a (in i min noe n�+i I n a I na naa I ma I "_ I as n Ma Ma 1 mm 1 rma Nag m +a Naa Naa N 7. 1 1 11 0 1 1 I C 148 =158 W Las Tunas ®r Development efi D ision Dep artment Engine CUP 2002-014 ering ivision , RWamdby. RS.GO Mi 4 Demnbw 2002 *OO ePO itO Na Ima Lu a +a Lu N+e O Nw W N>4 LIVE �a LAS TUNAS DR J1 r I �I X54 I } 3458 W Las Tunas o M I P 2002 -014 MEN W W6i 0l /07� JVOI OPA 5q tA MEMORANDUM January 3, 2003 TO: William R.. Kelly, Executive Director Arcadia Redevelopment Agency FROM: (K Don Penman, Deputy Executive Director FA �y: Pete Kinnahan, Economic Development Director SUBJECT: Transmittal of Final Draft Owner Participation Agreement (OPA; Agency Agenda Item 9a) Enclosed is a copy of the final draft OPA with American Senior Living for the proposed 54 -unit senior project at 150 W. Las Tunas (Agency Agenda Item 9a). While we are optimistic that the OPA can be recommended for approval Tuesday, there are still a few remaining issues to resolve. Staff will explain changes, if any, from this version at the meeting. cc: Agency Secretary (with enclosure) Steve Deitsch, Agency Attorney LASER IMAGED IDZ� RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The Arcadia Redevelopment Agency 240 West Huntington Drive Post Office Box 60021 Arcadia, California 91006 -6021 Attn: Executive Director DISTRIBUTION DRAFT No. 2 - JANUARY 2, 2003- [Fee Exempt -Govt. Code Section 61031 Use) (Space above for Recorder's HERITAGE PARK OWNER PARTICIPATION AGREEMENT/ LOAN AGREEMENT between THE ARCADIA REDEVELOPMENT AGENCY a public body, corporate and politic and AMERICAN SENIOR LIVING, INC. a California corporation [Dated as of January 7, 2003, for reference purposes only] RVPUBUCCV`645421 • O- • ARTICLE 1. DEFINITIONS; EFFECTIVE DATE; PARTIES. 1.1 Definitions. The initially capitalized terms and words used in this Agreement shall have the following meanings: 1.1.1 "Affordable Rent" means the monthly rent charged to a Qualifying Household of a Unit which shall be no greater than that allowed as an "affordable rent" by California Health & Safety Code Section 50053, as amended or substituted, for the Qualifying Household. 1.1.2 "Agency" means the Arcadia Redevelopment Agency, a public body, corporate and politic, and any nominee, assignee of, or successor to its rights, powers and responsibilities. 1.1.3 "Agency Loan" means the loan, in the principal amount not to exceed One Million Eight Hundred Thousand Dollars ($1,500,000), to be disbursed by the Agency to the Owner, subject to the terms and conditions of this Agreement, for the payment of Owner's actual costs incurred in completing the Project. The source of funds for the Agency Loan shall be the Agency's low- and moderate- income housing fund ( "Housing Fund "). Pursuant to the provisions of CRL Section 33334.3, such funds as must be set aside by the Agency for the purposes of increasing and improving the supply of low- and moderate- income housing. 1.1.4 "Agreement" means this Owner Participation Agreement/ Loan Agreement. 1.1.5 "City" means the City of Arcadia, a California municipal corporation, and any nominee, assignee of, or successor to its rights, powers and responsibilities. 1.1.6 "CRL" or "Community Redevelopment Law" means the California Community Redevelopment Law, California Health & Safety Code Section 33000, et seq., as it may be amended from time to time. RVPUB\K0%4542I 1 DRAFT 1.02.03 1.1.7 "Deed of Trust" means a first recorded priority position deed of trust in . favor of the Agency, in substantially the form attached as Exhibit E , securing the Owner's obligations under the Promissory Note. 1.1.8 "Effective Date" shall have the meaning set forth in Section 1.2 hereof. 1.1.9 "Event of Default" shall have the meaning set forth is Section 5.1 hereof. 1.1.10 "Loan Documents" mean the following documents evidencing the Agency Loan and required as consideration for the Agency to make the Agency Loan: (i) the Promissory Note; (ii) the Deed of Trust, and (iii) the Regulatory Agreement. 1.1.11 "HUD" means the United States Department of Housing and Urban Development. 1.1.12 "Median Income" means the median income adjusted by actual household size as published annually by HUD for the County of Los Angeles, which Median Income levels shall be adjusted in the future concurrently with publication of adjustment of the same by HUD. 1.1.13 "Owner" means American Senior Living, Inc., a California corporation, or an affiliate entity of American Senior Living, Inc., in which American Senior Living, Inc. maintains majority ownership, and any permitted nominee, assignee of, or successor to such entity's rights, powers and responsibilities. 1.1.14 "Project" means the construction of a mixed income housing project on the Property for senior persons, age fifty -five (55) and older. The Project shall contain a total of at least fifty -four (54) Units, and fifty -three (53) of those Units shall be affordable to Qualified Households at Affordable Rents for a period of not less than fifty five (55) years, as further proscribed in the Regulatory Agreement. RVPUB\K0%645421 2 DxAFr 1.02.03 • 1.1.15 "Project Area" means the Agency's Central Redevelopment Project Area as it may from time to time hereafter be amended. The Project Area is located in the City and its boundaries are specifically described in the Redevelopment Plan. 1.1.16 "Promissory Note" means the promissory note evidencing the Owner's obligation to repay the Agency Loan in substantially the form attached as Exhibit D . 1.1.17 "Property" means that certain real property generally located at 150 West Las Tunas Drive in the City. The Property is legally described on the attached Exhibit A -1 and depicted on the Site Map attached as Exhibit A -2 . The Owner is presently in a conditional escrow to acquire fee title to the Property. 1.1.18 "Qualified Households" means individuals or families meeting all of the following criteria: (i) At least one of the residents in the household is a "Qualifying Resident" or "Senior Citizen" as defined by California Civil Code Section 51'.3(c)(1); (ii) Every member of the household who is not a "Qualifying Resident" or "Senior Citizen" as described in (i) above shall be a "Qualified Permanent Resident" or a "Permitted Health Care Resident," as defined by California Civil Code Section 51.3(c)(2) and (6), respectively; (iii) Which qualifies as either persons or families of very low income, as provided by California Health & Safety Code Section 50105, as those sections maybe amended and/or substituted from time to time; and (iv) At the commencement of the occupancy of a Unit, the maximum allowable household income was equal to (or less than) fifty percent (50 %) ofthe HUD Median Income, adjusted for household size. RVPCe\xc\w45421 3 Dawrr 1.02.03 - L ,. • E 1.1.19 "Redevelopment Plan" means the redevelopment plan for the Project Area as adopted by the City Council pursuant to CRL, as it may have been, or may be from time to time hereafter, amended. 1.1.20 "Regulatory Agreement" means the instrument entitled "Regulatory Agreement and Declaration of Restrictive Covenants," substantially in the form attached as Exhibit G. 1.1.21 "Schedule of Performance" means the schedule of required actions to be undertaken by the Owner to complete the Project as set forth in Exhibit C attached hereto. 1.1.22 "Scope of Development" means the description of required actions to be undertaken by the Owner to complete the Project as set forth in Exhibit B attached hereto. 1.1.23 "Units" mean the fifty four (54) individual residences in the Project. "Unit" means one of the Units. 1.2 Effective Date of Agreement. This Agreement is dated January 7, 2003 for reference purposes only. This Agreement will not become effective until the date ( "Effective Date ") on which all of the following are true: (i) This Agreement has been approved and executed by the appropriate authorities of the Owner and delivered to the Agency; (ii) Following all legally required notices and hearings, this Agreement has been approved by the Agency's governing board and the City Council (acting as the Agency's legislative body) and delivered to the Owner; and (iii) This Agreement has been executed by the appropriate authorities of the Agency and delivered to the Owner. If this Agreement has been approved by the Owner and delivered to the Agency as provided in (i) above, but the Agency fails to approve or deliver this Agreement as described in (ii) and (iii) RVPLIMKMa645421 4 DRAFT 1.02.03 0 0 T , above by January 31, 2003, then this Agreement shall not become effective and any prior signatures and approvals of the Parties will be deemed void and of no force or effect. This Agreement shall be recorded against the Property at any time following the Effective Date. 1.3 Parties to Agreement. 1.3.1 The Agency. The Agency is THE ARCADIA REDEVELOPMENT AGENCY, a public body, corporate and politic, and any nominee, assignee of or successor to its rights, powers and responsibilities. The address of the Agency is 240 West Huntington Drive, Arcadia, California 91006 -6021, Attention: Executive Director; telephone (626) 574 -5414; facsimile (626) 447 -3309; with copies to Best Best & Krieger LLP, 3750 University Avenue, Suite 400, Riverside, California 92501, Attention: Arcadia Redevelopment Agency Counsel; facsimile (909) 686 -3083. Agency represents and warrants to the Owner; that, to the Agency's actual current knowledge: (i) The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under CRL; (ii) The Agency has taken all actions required by law to approve the execution of this Agreement; (iii) The Agency's entry into this.Agreement and the performance of the Agency's obligations under this Agreement do not violate any contract, agreement or other legal obligation of the Agency; (iv) The Agency's entry into this Agreement and the performance of the Agency's obligations under this Agreement do not constitute a violation of any state or federal statute or judicial decision to which the Agency is subject; RVPUBVKP645421 5 DRAnr 1.02.03 0 (v) There are no pending lawsuits or other actions or proceedings which would prevent or impair the timely performance of the Agency's obligations under this Agreement; (vi) The Agency has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement has been duly authorized and no other action by Agency is requisite to the valid and binding execution, delivery and performance of this Agreement, except as otherwise expressly set forth herein; and (vii) The individual executing this Agreement is authorized to execute this Agreement on behalf of the Agency. The representations and warranties set forth above are material consideration to the Owner and the Agency acknowledges that the Owner is relying upon the representations set forth above in undertaking the Owner's obligations set forth in this Agreement. The term "Agency's actual current knowledge" means, and is limited to, the actual current knowledge of the Agency's Executive Director as of the date of the making of the representation or warranty, without having undertaken any independent inquiry or investigation for the purpose of making such representation or warranty and without any duty of inquiry or investigation. All of the terms, covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the Agency and its nominees, successors and assigns. 1.3.2 The Owner. The Owner is AMERICAN SENIOR LIVING, INC., a California corporation. The address of the Owner for purposes of this Agreement is 1740 East Garry Avenue, Suite 105, Santa Ana, California 92705, Attention: Roger Davila; telephone (949) 224- 1800; facsimile (949) 224 -1805; with copies to Arter & Hadden LLP, 5 Park Plaza, Suite 1000, Irvine, California 92614 -8528, Attention: Bruce Holden; telephone (949) 252 -3102; facsimile (949) 833 -9604. RVPUB\Kc\w4542i 6 DAAFr 1.02.03 9 • The Owner represents and warrants to the.Agency that, to the Owner's actual current knowledge: (i) The Owner is a duly formed California corporation in good standing and lawfully entitled to do business in the State of California; (ii) The individuals executing this Agreement are authorized to execute this Agreement on behalf of.the Owner; (iii) The Owner has taken all actions required by law to approve the execution of this Agreement; (iv) The Owner's entry into this Agreement and the performance of the Owner's obligations under this Agreement do not violate any contract, agreement or other legal obligation of the Owner; (v) The Owner's entry into this Agreement and the performance of the Owner's obligations under this Agreement do not constitute a violation of any state or federal statute or judicial decision to which the Owner is subject; (vi) There are no pending lawsuits or other actions or proceedings which would prevent or impair the timely performance of the Owner's obligations under this Agreement; and (vii) The Owner has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement have been duly authorized and no other action by the Owner is requisite to the valid and binding execution, delivery and performance of this Agreement, except as otherwise expressly set forth herein. The representations and warranties set forth herein are material consideration to the Agency and the Owner acknowledges that the Agency is relying upon the representations set forth above in undertaking the Agency's obligations set forth above. The term "Owner's actual current knowledge" means, and is limited to, the actual current knowledge of Roger Davila, as of the date of the making of the representation or warranty without having undertaken any independent inquiry or RVPUBRCC\\645421 - 7 DRAFT 1.02.03 investigation for the purpose of making such representation or warranty and without any duty of inquiry or investigation. All of the terms, covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the Owner and its permitted nominees, successors and assigns. Wherever the term "Owner" is used herein or therein, such term shall include any permitted nominee, assignee or successor of the Owner. The qualifications and identity of the Owner are of particular concern to the Agency, and it is because of such qualifications and identity that the Agency has entered into this Agreement with the Owner. No voluntary or involuntary successor -in- interest of the Owner shall acquire any rights or powers under this Agreement except as expressly set forth herein. The Owner may not assign or transfer all or any part of this Agreement or the Property without the prior written approval of the Agency, which may be given or withheld as provided in Sections 4.12. 1.3.3 The Agency and the Owner are sometimes referred to individually as "Party" and collectively as 'Parties" herein. ARTICLE 2. RECITALS ABOUT THE REDEVELOPMENT PLAN AND PROJECT. 2.1 The Redevelopment Plan and Project Area. The Agency is a duly constituted redevelopment agency under the laws of the State of California and is engaged in activities necessary to carry out and implement the Redevelopment Plan for the Project Area. This Agreement is subject to the provisions of the Redevelopment Plan as it now exists and as it may be subsequently amended; the Redevelopment Plan is incorporated by this reference. 2.2 The Property and the Project. The Owner is presently in a conditional escrow to acquire the Property and has expressed an interest in participating in the redevelopment of the Project Area by completing the Project on the Property. The Owner has submitted to the Agency a redevelopment proposal for the Project and estimates the costs of undertaking the completion of the Project to be Eight Million Seven Hundred Twenty Thousand Dollars ($8,720,000). The Owner is RVPUB'K0X646421 R DRAFT 1.02.03 • • requesting the Agency's assistance with the undertaking the completion of the Project in the form of an interest bearing loan. The Owner desires to enter into an Owner Participation Agreement / Loan Agreement with the Agency pursuant to which the Owner would carry out construction of the Proj ect and satisfy certain covenants and conditions set forth therein, and the Agency would provide financial assistance to the Owner for a portion of the actual costs of completing the Project in the form of a secured loan to the Owner for an amount not to exceed One Million Eight Hundred Thousand Dollars ($1,800,000). 2.3 Purpose of this Agreement. This Agreement and the Exhibits attached hereto implement the Redevelopment Plan for the Project Area and by providing the Agency Loan to the Owner to assist the completion of the Project. The provision of the Agency Loan to the Owner, and the covenants and benefits to be received by the Agency in return, are in the best interest of the City and Agency and the health, safety, morals and welfare of its taxpayers and residents and is in accordance with public purposes set forth in the CRL and federal, state and local law and regulations. Implementation of this Agreement will further the goals and objectives of the Redevelopment Plan and the City's General Plan Housing Element by expanding the supply of affordable housing in the City, strengthening the City's land use and social structure and by alleviating economic and physical blight within the Project Area. ARTICLE 3. AGENCY ASSISTANCE. 3.1 , Agency Loan. The Agency hereby agrees to loan to Owner an amount not to exceed the sum of One Million Eight Hundred Thousand Dollars ($1,800,000)( "Agency Loan"), subject to the terms and conditions set forth in this Agreement and the Loan Documents. The Agency Loan shall be evidenced by the Promissory Note and secured by the Deed of Trust. 3.2 Disbursement of Agency. Loan. Upon satisfaction of the conditions precedent to the disbursement of the Agency Loan as set forth in Section 3.3, the Agency shall disburse the Agency Loan to the Owner.three (3) payments as provided in the Schedule of Performance. The Agency RVPUMCM45421 a DRAFT 1.02.03 Loan shall reimburse the Owner only for the costs attributable to the completion of the Project in accordance with the Schedule of Performance. 3.3 Conditions Precedent to Disbursement of Agency Loan. No disbursement of any portion of the Agency Loan shall be made until all of the conditions precedent set forth in this Section 3.3 are met to the satisfaction of the Agency's Executive Director, or his or her designee. 3.3.1 Execution and Delivery of Documents. The Owner shall have executed (in recordable form, as necessary) and delivered to the Agency this Agreement and the Loan Documents. 3.3.2 Title to Property. The Owner shall have good and marketable fee title to the Property, and there will exist thereon or with respect thereto no mortgage, lien, pledge or other encumbrance of any character whatsoever other than (i) liens for current real property taxes and assessments not yet due and payable, and (ii) deeds of trust, mortgages or other encumbrances approved by the Agency. Title in conformance with this Section 3.3.2 shall be evidenced by the Owner providing the Agency, at the Owner's sole cost and expense, a lender's policy of title insurance issued by a title company mutually agreeable to the Parties. 3.3.3 Insurance. The Owner shall obtain such insurance and provide to the Agency the endorsements required by Section 4.11. 3.3.4 Recordation. This Agreement, the Deed of Trust and the Regulatory Agreement shall be recorded in a priority position senior to all non - statutory monetary and non- monetary liens, encumbrances and charges against the Property. 3.3.5 Permits and Approvals. The Owner shall have obtained any and all permits and approvals required by the City or other governmental agencies for undertaking and operating Project. 3.3.6 No Default. The Owner shall be in compliance with all of the terms, covenants, and conditions set forth in this Agreement and there shall exist no condition, event or act RVPUSUCaw45421 10 Danrr 1.02.03 which would constitute an Event of Default hereunder or which, upon the giving of notice or the passage of time, or both, would constitute an Event of Default. 3.3.7 Representations and Warranties. All representations and warranties of the Owner contained in this Agreement shall be true and correct as of the date of the disbursement of the Agency Loan. 3.4 Repayment of Agency Loan. Owner shall repay the Agency Loan in accordance with the Loan Documents. 3.5 Housing Fund. The Parties hereto each acknowledge that the Agency intends to disburse the Agency Loan pursuant to this Agreement with funds available from the Agency's Housing Fund which are otherwise unencumbered. It is understood and agreed by the Parties that the obligation of the Agency to disburse the Agency Loan is subject to and conditioned upon the availability of such funds in the Agency's Housing Fund, as determined by the Agency in its sole and absolute discretion. ARTICLE 4. DEVELOPMENT OF THE PROJECT ON THE PROPERTY. 4.1. Obligations Regarding Scope of Development; Schedule of Performance. The Owner shall perform its obligations with respect to the Project in accordance with this Agreement, including, without implied limitation, the Scope of Development and Schedule of Performance attached as Exhibit B and Exhibit C , respectively, and any additional plans provided by the Owner and approved by the Agency and the City pursuant to this Agreement. 4.2 Preparation of Concept and Site Plans and Related Documents. Within the time set forth in the Schedule of Performance, the Owner shall prepare and submit to the Agency concept and site plans and related documents for the Project, for the Agency's review pursuant to Section 4.3 of this Agreement. The concept and site plans and related documents shall be consistent with the Scope of Development. RVPUB\KO%645421 11 DRAFT 1.02.03 The Agency's staff and the Owner shall hold regular progress meetings to coordinate the preparation and submission of the concept and site plans and related documents. The Agency's staff and the Owner shall communicate and consult informally as frequently as is necessary to assure that the formal submittal of any documents to the City receives prompt consideration. 4.3 Agency Approval of Concept Design Drawings. The Agency shall have the right of review and approval of all plans, drawings and related documents (collectively "Plans ") for the Project, including any proposed changes thereto. The Agency shall review and reasonably approve or disapprove such Plans and any proposed changes thereto within twenty (20) business days of its receipt of the Plans. Any disapproval shall state in writing the reasons for disapproval and the changes requested by the Agency to be made. The Agency shall approve the Plans provided that the Plans conform to this Agreement. The Owner, upon receipt of a disapproval, shall revise such plans, drawings and related documents and shall submit them to the Agency within twenty (20) business days after receipt of notice of disapproval. The Agency shall use reasonable good faith efforts to expedite the City's processing and review of the Owner's plans, in a manner consistent with statute, the City's Municipal Code and this Agreement. The Agency shall approve or disapprove the Plans within twenty (20) business days from the date of their submission to the Agency. Failure by the Agency to either approve or disapprove within the time established in this Section 4.3 shall be deemed an approval. The foregoing notwithstanding, no matter shall be deemed approved unless the request for approval conforms with Section 6.6. Any changes to the Plans required by the Agency shall not operate to extend the time for performance of the Owner's obligations hereunder, unless such changes are necessary due to. the Agency - initiated deviations from the Scope of Development. The Agency and the Owner shall confer in good faith regarding appropriate time extensions for the Agency - initiated changes. 4.4 Agency's Right to Approve Contractor. Owner shall obtain written approvals of the Agency of the general contractor responsible for the construction of the Project. In determining whether to give the approvals, the Agency shall evaluate: (i) the fitness and experience of the proposed contractor to construct the Project; (ii) a list of references and referrals for past projects; (iii) whether the contractor has all licenses, permits, qualifications and approvals of whatever nature RVPUB\KC\ \645421 12 DRARr 1.02.03 • • legally required to work in the contractor's profession; and (iv) the proposed contractor's ability to construct the Project in a manner acceptable to the Agency.. The Agency's approval of the general contractor is for internal purposes only and by doing so, the Agency is not passing judgment on the fitness of the contract or the quality of work performed by such contractor nor may the Owner rely on the Agency's approvals for such. Neither the Owner nor any person or entity not a signatory to this Agreement shall have any rights or causes of action against anyparty to this Agreement as a result of any Agency approval hereunder. 4.5 Governmental Requirements. If any governmental official, agency, department or bureau having jurisdiction over the Projector the Property (including, without implied limitation, the City) requires material revisions or corrections of the Agency- approved concept and site plans; the Owner and the Agency shall cooperate in efforts to obtain waivers of such requirements or to develop a mutually acceptable set of alternative concept and site plans. With the exception of Section 4.6 below, the Owner shall, at its own expense, secure or cause to be secured, any and all . permits, entitlements, or other approvals which may be required by or from the City or any other governmental agency with jurisdiction over the Projector the Property. The Agency shall provide reasonable good faith efforts to expedite the City's processing of permits and approvals, in a manner consistent with statute, the City s Municipal. Code and this Agreement. The Owner shall carry out the construction of the Project in conformity with all applicable laws, including all applicable federal and state labor and safety standards. . 4.6 Cost of Project. The Owner shall complete, or cause the completion of the Project at the Owner's sole cost and expense. Notwithstanding the foregoing, the proceeds of the Agency Loan may be used in accordance with Section 3.1 hereof to reimburse the Owner for the actual costs incurred by the Owner to complete the Project. 4.7 Schedule of Performance. The Owner shall begin and complete all Project construction within the times specified in the Schedule of Performance or such reasonable extension of said dates as may be granted by the Agency. In addition to extensions of time provided by express provisions of this.Agreement, the Schedule of Performance may be revised from time to time as mutually agreed upon in writing between the Owner and the Agency. RVPUBVCC\1645421 13 DRAFT 1.02.03 From time to time, during the period of Project construction and as reasonably requested by the Agency, the Owner shall report to the Agency on the progress of Project construction. The reports shall be in such form and detail as may reasonably be required by the Agency and shall include construction photographs taken since the last report. 4.8 Grading, Paving and Landscaping Plans.. The Owner shall prepare and submit to the City for its approval, preliminary and final, grading, paving and landscaping plans for the Project. These plans shall be prepared, submitted and approved by the City Engineer prior to the start of construction. The grading plans shall be prepared by a registered civil engineer. Owner shall complete installation of landscaping for the Project on the Property prior to the issuance of a certificate of occupancy. The landscaping plan, including plant materials and types, shall be subject to the City's reasonable approval in accordance with applicable City ordinances and regulations. 4.9 Right of Access. For the purpose of assuring compliance with this Agreement, representatives of the Agency and the City shall have reasonable right of access to the Property without charge, during business hours. The Agency and the City will use good faith efforts to minimize any interference that their entry may have upon the Owner's operations. The Agency and City shall indemnify, defend, and hold harmless the Owner and Owner's officers, members, employees, and agents from any damage caused or liability arising out of the exercise of this right of access, to the extent such liability and damage are proximately caused by the Agency, the City or their employees, agents or contractors. 4.10 Indemnity. The Owner shall defend, indemnify and hold the Agency and the City, and their officers, directors, agents, servants, attorneys, employees and contractors harmless from and against all liability, loss, damage, costs, or expenses (including reasonable attomeys' fees and court costs) (all of the foregoing collectively, "Liabilities ") arising from or as a result of the death of any person or any accidental injury, loss or damage whatsoever caused to any person or to the property of any person and which shall be, or alleged to be, directly or indirectly, caused by any acts done thereon or any errors or omissions of the Owner or its officers, directors, agents, servants, attorneys, employees or contractors in connection with the Project. The Owner shall not be xveue\ CM4s421 14 DRArr 1.02.03 responsible for (and such indemnity shall not apply to) any acts, errors or omissions directly or indirectly caused by the Agency or the City, or their respective officers, directors, agents, servants, attorneys, employees or contractors. The Agency and the City shall not be responsible for any acts, errors or omissions of any person or entity except the Agency and the City and their respective officers, agents, servants, employees or contractors. The Owner's obligations under this Section 4.10 shall survive the expiration or termination of this Agreement. THE OWNER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 ( "SECTION 1542 "), WHICH IS SET FORTH BELOW: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." BY INITIALING BELOW, THE OWNER HEREBY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES: Owner's Initials 4.11 Insurance. Prior to the Agency's disbursement of the Agency Loan, the Owner shall fumish or cause to be furnished to the Agency duplicate originals and appropriate endorsements to the Owner's commercial general liability and automobile insurance policies in the amounts set forth below, naming the Agency and the City as additional or co- insureds: RVPUBT,CV645421 15 DRAFT 1.02.03 0 0 (a) $1,000,000 for anyone person; and (b) $3,000,000 for any one occurrence; and (c) $ 1,000,000 for any property damage. The policies shall be "occurrence," not "claims made," policies and shall be primary and non- contributing to any insurance that the Agency may elect to obtain. Such policies shall contain a full waiver of subrogation clause. The policies shall be issued by a carrier licensed to do business in California, with a then-current Best's rating of A: VIII or better. Said policies shall provide that they shall not be canceled or reduced in types of coverage or amount of coverage without at least thirty (30) business days' prior written notice to the Agency and that such reduction or cancellation shall become effective until at least twenty (20) business days after receipt by the Agency of the written notice thereof. The policy amounts set forth above shall not limit or define the extent of the Owner's indemnity liability pursuant to Section 4.10 or any otherprovision of this Agreement, or arising as a matter of law or at equity. The Owner shall also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that any contractor with whom it has contracted for the performance of work on the Project carries workers' compensation insurance as required by law. The Owner shall also maintain, or cause its contractor to maintain, all -risk course of construction insurance, insuring the Owner, the Agency and the City against rall risk (including earthquakes) of loss or damage to the Project. The obligations set forth in this Section 4.11 shall remain in effect until a Certificate of Completion has been issued for the Project. 4.12 Prohibition Against Transfer. Prior to the issuance of a Certificate of Completion, the Owner may not assign or attempt to assign this Agreement or any right or obligation herein, or make any total or partial sale, transfer, lease, conveyance or assignment of the Project orProperty, or anyportion thereof, without prior written approval of the Agency, which maybe given or withheld in RVPUB1KO\545421 16 DRAFT 1.02.03 0 0 the Agency's reasonable discretion. In determining whether to approve of such a partial sale, transfer, conveyance or assignment of the Project or the Property, or any portion thereof, the Agency shall evaluate: (i) the financial ability of the proposed transferee to own and operate the Project, or portion so transferred, and to meet the Owner's obligations under this Agreement; and (ii) the fitness and experience of the proposed transferee to own and operate the Project or portion so transferred. No unpermitted sale transfer, conveyance or assignment of this Agreement or all or any portion of the Project or the Property shall be deemed to relieve the Owner or any other party from any obligation under this Agreement, nor shall any such unpermitted sale, transfer, conveyance or assignment transfer any rights in this Agreement, the Project or the Property. 4.13 Permitted Encumbrances. The Owner shall not, at anytime prior to the recordation of a Certificate of Completion, grantor permit any mortgage, deed of trust, sale and leaseback or any other form of conveyance or encumbrance in connection with the financing or development of the Property ( "Lien ") other than a Permitted Encumbrance, as hereinafter defined. For purposes hereof, a "Permitted Encumbrance" is any Lien which secures financing: (i) provided to Owner. by a nationally or state chartered bank or any finance subsidiary thereof, an insurance company (or affiliate thereof) rated at least B+ XH by A.M. Best; (ii) providing sufficient funds to permit the completion of the Project; (iii) collateralized by the Property; (iv) with respect to which the Agency receives written notice prior to the recordation of any documentation recording such Lien; (v) with respect to which the lender agrees to give the Agency written notice, concurrently with notice to the Owner, of any default under any of the financing documents pertaining to such Lien and the right to cure such default within any cure period, afforded Owner by such lender or by law; and (vi) with respect to which the lender provides the Agency the right to purchase the lender's interest upon payment of all sums owed by the Owner to such lender under the financing documents, which right may not expire any sooner than three (3) business days prior to sale of the Property pursuant to power of sale or judgment in foreclosure. Nothing in this Agreement shall be deemed to obligate the holder of any Permitted Encumbrance to construct the Project or to guarantee such completion. Nothing in this Agreement shall be deemed to permit or authorize any such holder to develop the Property or construct the AVPUBVC0\645421 17 DRAYr 1.02.03 Project thereon except in strict compliance with this Agreement. Any right, title and interest in the Project or the Property, or any portion thereof, acquired by any means by any holder of a Lien, or by such holder's assignees or successors, shall be subject to the terms and provisions of this Agreement and the Exhibits attached hereto. 4.14 Certificate of Completion. Upon the Owner's completion of the Project as evidenced by the City's issuance of a final certificate of occupancy, the Agency shall furnish to the Owner, within thirty (30) business days following Owner's written request, a Certificate of Completion upon written request to the Agency, substantially in the form set forth in the attached Exhibit F . The Certificate of Completion shall be a conclusive determination of satisfactory completion of the Project under this Agreement. The Certificate of Completion will not constitute: (i) evidence of compliance with or satisfaction of any obligation of the Owner to any party other than Agency, (ii) evidence of compliance with or satisfaction of any obligation of the Owner to any holder of a mortgage or any insurer of a mortgage, or (iii) a notice of completion as referred to in California Civil Code Section 3093. 4.15 Covenants, Conditions and Restrictions. In consideration of the terms of this Agreement, including the provision of the Agency Loan in accordance with Section 3.1 hereof, the Owner agrees for itself, and its successors and assigns to comply with all the covenants, conditions and restrictions set forth in this Section 4.15 and the Regulatory Agreement in connection with the use, operation and maintenance of the Project and the Property. 4.15.1 Nondiscrimination Covenant. The Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Project and the Property or any part thereof, that in perpetuity, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Project and the Property, nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Project and the Property. The Owner shall, in perpetuity, refrain from restricting the rental, sale or Rveuevcc\w45421 18 DRARr 1.02.03 0 0 lease of the Project and the Property on the basis of race, color, creed, religion, sex, marital status, ancestry or national origin of any person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 4.15.1.1 In Deeds. "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 4.15.1.2 In Leases. "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." 4.15.1.3 In Contracts. "There shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself, or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to RVPUBVCCP645421 19 DRArr 1.02.03 • the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land." 4.15.2 Use Covenant. As more specifically provided in the Regulatory Agreement, the Owner covenants and agrees for itself, its assigns and all voluntary and involuntary successors in interest to the Property or any part thereof, that Owner shall, for the term set forth in the Regulatory Agreement, use fifty -three (53) Units of the Project exclusively to provide housing for Qualified Households as Affordable Rents. The Owner further agrees that the Property shall, in perpetuity, be put to no use other than those uses specified in the City's General Plan and zoning ordinances as the same maybe amended from time to time. Nothing in this Section 4.15.2 shall limit, expand, modify or otherwise affect any right of the Owner to continue any legal nonconforming use upon the Property following changes in the City's General Plan or zoning ordinances. 4.15.3 Operation and Maintenance Covenant. The Owner covenants and agrees for itself and all voluntary and involuntary successors in interest to the Property, or any part thereof, that the Owner shall: (i) operate all portions of the Property in compliance with the terms of the Redevelopment Plan, all applicable provisions of the City's Municipal Code and any and all other applicable governmental requirements, and (ii) maintain, or cause to be maintained, the interior and exterior appearances of the Property (including landscaping) in a good condition, ordinary wear and tear excepted, free from an accumulation of trash or other debris, and shall promptly remove, or cause the removal of, all graffiti placed upon the Property. The maintenance covenant of this Section 4.15.3 shall remain in effect for the effective period of the land use controls of the Redevelopment Plan. 4.15.4 Enforcement of Covenants. The covenants set forth in Sections 4.15.1 through 4.15.3 touch and concern the Property, and every part thereof, and constitute covenants and equitable servitudes running with the Property and every part thereof, which maybe enforced by the Agency or the City (as an intended third party beneficiary), regardless of whether the Agency or the City currently or continue to own an interest in any property within the Project Area. xvruavcaw45421 20 Dsawr 1.02.03 • • The Owner irrevocably stipulates and agrees that breach of any of the covenants set forth in Sections 4.15.1 through 4.15.3 will result in great and irreparable damage to the Agency and the City, will violate the public policy and the purposes of the CRL, and will result in damages to the Agency and the City which are either impracticable or extremely difficult to quantify. Accordingly, upon the breach of any covenant set forth in Sections 4.15.1 through 4.15.3 the Agency may institute an action for mandatory or prohibitive injunctive relief against such breach. 4.16 Relocation Costs and Benefits. Owner and Agency acknowledge that, under federal, state and local law, certain individuals and/or businesses may be entitled to receive relocation assistance (including but not limited to moving expenses, rental expenses, replacement payments and loss of good will payments) or other relocation compensation, benefits and reimbursements (collectively, "Relocation Costs and Benefits ") from the Agency in connection with the development of the Project on the Property. Inconsideration of the terms of this Agreement, including the provision of the Agency Loan in accordance with Section 3.1 hereof, the,Owner agrees for itself, and its successors and assigns to contract with and pay for a professional relocation consultant ( "Relocation Consultant ") to determine and process all Relocation Costs and Benefits arising out of the development of the Project. The Owner further agrees to pay, for any and all Relocation Costs and Benefits as determined by: (i) the Relocation Consultant and approved by the Agency pursuant to this Section 4.16, and/or (ii) a court of law. 4.16.1 Agency Approval of Relocation Consultant. Owner shall obtain the Agency's written approval of the Relocation Consultant responsible for determining and processing the Relocation Costs and Benefits for the Project. In determining whether to give the approval, the Agency shall evaluate: (i) the fitness and experience of the proposed Relocation Consultant; (ii) a list of references and referrals for past relocation projects; (iii) whether the Relocation Consultant has all licenses and qualifications of whatever nature legally required to work in the Relocation Consultant's profession; and (iv) the proposed Relocation Consultant's_ ability to determine and process the Relocation Costs and Benefits in a manner acceptable to the Agency. The Agency's approval of the Relocation Consultant is for internal purposes only and by doing so, the Agency is not passing judgment on the quality of work performed by such Relocation Consultant nor may the Owner rely on the Agency's approvals for such. Neither the Owner nor any person or entity not a signatory to RVPUB%KC\ \645421 21 DP-Ayr 1.02.03 0 0 this Agreement shall have any rights or causes of action against any party to this Agreement as a result of any Agency approval hereunder. The Agency and Owner acknowledge and agree that the Relocation Consultant is the sole and exclusive contractor of the Owner and that the Relocation Consultant is not a contractor or employee of the Agency. The Owner shall pay all wages, salaries and other amounts due to the Relocation Consultant in connection with their performance under this Agreement as required by law. 4.16.2 Determination and Processing of Relocation Costs and Benefits. Within the time set forth in the Schedule of Performance, the Owner shall submit to the Agency a determination of the Relocation Costs and Benefits prepared by the Relocation Consultant for the Agency's review pursuant to Section 4.16.3 of this Agreement. The Relocation Costs and Benefits determination shall be consistent with federal, state and local law, including the Agency's Rules and Regulations for the Implementation of the California Relocation Assistance Law and Real Property Acquisition Guidelines ( "Relocation Guidelines "). 4.16.3 Agency Approval of Relocation Costs and Benefits Determination. The Agency shall have the right of review and approval of the Relocation Costs and Benefits determination. The Agency shall review and reasonably approve or disapprove such determination of Relocation Costs and Benefits within twenty (20) business days of its receipt of such determination. Any disapproval shall state in writing the reasons for disapproval and the changes requested by the Agency to be made. The Owner, upon receipt of a disapproval, shall revise the determination of Relocation Costs and Benefits and shall submit it to the Agency within twenty (20) business days after receipt of notice of disapproval. The Agency shall approve or disapprove the determination of Relocation Costs and Benefits within twenty (20) business days from the date of its submission to the Agency. Failure by the Agency to either approve or disapprove within the time established in this Section 4.16.3 shall be deemed an approval. The foregoing notwithstanding, no matter shall be deemed approved unless the request for approval conforms with Section 6.6. RVPUBNCC\\645421 22 DRAFT 1.02.03 4.17 Prevailing Wages. The Owner is aware of the requirements of California Labor Code Sections 1720 et seq and 1770 et seq, California Code of Regulations, Title 8, Section 16000 et seq and the Federal Davis Bacon Act (40 U.S.C. Section 276a) ('Prevailing Wage Laws "), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects and the Owner agrees to fully comply with such Prevailing Wage Laws. The Owner shall defend, indemnify and hold the Agency and the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. ARTICLE 5. DAMAGES AND REMEDIES. 5.1 Event of Default. Each of the following shall constitute an "Event of Default" under this Agreement: 5.1.1 Failure by a Party to comply with and observe any of the conditions, terms, or covenants set forth in this Agreement or the Loan Documents and failure to cure (or commence to cure, if applicable) as provided herein or as set forth in the Loan Documents. 5.1.2 Any representation or warranty contained in this Agreement or in any application, financial statement invoice, certificate, or report submitted by one to the'other Party proves to have been intentionally incorrect in any material respect when made. 5.2 Rights and Remedies Not Exclusive. Unless prohibited by law or otherwise provided by a specific term of this Agreement, the rights and remedies of the Agency and the Owner under this Agreement are nonexclusive, and all remedies hereundermay be exercised individually or cumulatively. In addition to those remedies expressly granted herein, the Parties shall also have the right to seek all other available legal and equitable remedies, including, without implied limitation, general and'consequential damages, unless otherwise expressly provided to the contrary herein. Rvru13\KCM45421 23 DRAFr 1.02.03 • E J 5.3 Notice and Opportunity to Cure. If either Party to this Agreement believes that the other Party has failed to perform any obligation of that Party in accordance with the terms of this Agreement ( "Default "), the Party alleging the Default shall provide written notice ( "Default Notice ") to the other Party, setting forth the nature of the alleged Default. Unless otherwise provided by a specific term of this Agreement or the Loan Documents, the Party claimed to be in Default shall have ten (10) business days after its receipt of the Default Notice to completely cure such Default or, if such Default cannot reasonably be cured within such ten (10) business day period, to commence the cure of such Default within the ten (10) business day period and diligently prosecute the cure to completion thereafter. If the Party alleged to be in Default fails to cure, or to commence to cure (if applicable), as provided in the preceding paragraph, the Party alleging the Default may exercise such rights and remedies as provided for in this Agreement or the Loan Documents upon an Event of Default. 5.4 Termination. In addition to all other rights and remedies granted to the Parties under this Agreement and the Loan Documents or available to the Parties in equity or at law, and prior to the disbursement of the Agency Loan, the Agency may terminate this Agreement and the Loan Documents and all of its obligations hereunder and thereunder without cost or liability upon the Owner's Event of Default. 5.5 Origination Fee. As consideration for the Agency's entry into this Agreement and the Agency's Loan to Owner, within ten (10) working days from the Effective Date of this Agreement, the Owner shall submit to Agency a fee to credit the Agency for all of its costs and expenses in connection with the approval and processing of the Agency Loan ( "Origination Fee "). The amount of Origination Fee shall be Twenty Thousand Dollars ($20,000) and shall be in a form of security acceptable to the Agency to insure that the Owner will proceed diligently and in good faith to fulfill its obligations under-this Agreement. If the Origination Fee is in the form of cash or a certified cashier's check, it shall be deposited in an account in a bank selected by Agency: The Origination Fee shall be refunded or released to Owner upon the Agency's payment of Progress Payment 1 to the Owner as set forth in the Schedule of Performance. Notwithstanding the xveuevcwbasaai 24 DRAFT 1.02.03 • • foregoing, in the event that the Agency does not pay to Owner Progress Payment 1 as a result of the Owner's Event of Default, the Agency shall be entitled to keep the Origination Fee and any accrued interest thereon. ARTICLE 6. GENERAL TERMS. 6.1 Notices and Demands: All notices or other communications required or permitted between the Agency and the Owner under this Agreement shall be in writing, and may be (i) personally delivered, (ii) sent by United States registered or certified mail, postage prepaid, return receipt requested, (iii) sent by telecopier, or (iv) sent by nationally recognized overnight courier service (e.g., Federal Express), addressed to Parties at the addresses provided in Section 1.3, subject to the right of either Party to designate a different. address for itself by notice similarly given. Any notice so given by registered or certified United States mail shall be deemed to have been given on the second (2nd) business day after the same is deposited in the United States mail. Any notice not so given by registered or certified mail, such as notices delivered by telecopier or courier service (e.g., Federal Express), shall be deemed given upon receipt of the same by the Party to whom the notice is given. - 6.2 Nonliability of Agency or City Officials and Employees. No board member, official, contractor, consultant, attorney or employee of the Agency or the City shall be personally liable to the Owner, any voluntary or involuntary successors or assignees, or any lender or otherparty holding auinterest in the Project or the Property, in the event of any default orbreach by the Agency, or for any amount which may,become due to the Owner or to its successors or assignees, or on any obligations arising under this Agreement. 6.3 Conflict of Interests. No board member, official, contractor, consultant, attorney or employee of the Agency or the City shall have any personal interest, direct or indirect, in this Agreement nor shall any such board member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he /she is directly or indirectly interested. The Owner represents and warrants to the Agency that it has not received any other form of consideration in connection with this Agreement other than the consideration expressly provided herein. avruaa O\645a21 25 DRAFT 1.02.03 0 0 6.4 Time Deadlines Critical; Extensions and Delays; No Excuse Due to Economic Changes. Time is of the essence in the performance of the Agency's and the Owner's obligations under this Agreement. In addition to specific provisions of this Agreement, providing for extensions of time, times for performance hereunder shall be extended where delays or defaults are due to war; terrorism; insurrection; any form of labor dispute; lockouts; riots; floods; earthquakes; fires; acts of God or of third parties; third party litigation; acts of a public enemy; referenda; acts of governmental authorities (except that the failure of the Agency to act as required hereunder shall not excuse its performance); moratoria; epidemics; quarantine restrictions; and freight embargoes (collectively, "Enforced Delays ") provided, however, that the Party claiming the extension notifies the other Party of the nature of the matter causing the default; and, provided further, that the extension of time shall be only for the period of the Enforced Delays. However, deadlines for performance may not be extended as provided above due to any inability of the Owner to obtain or maintain acceptable financing for the construction or operation of the Project. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE OWNER EXPRESSLY ASSUMES THE RISK OF UNFORESEEABLE CHANGES IN ECONOMIC CIRCUMSTANCES AND /OR MARKE DEMAND /CONDITIONS AND WAIVES, TO THE GREATEST LEGAL EXTENT, ANY DEFENSE, CLAIM, OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY, IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUSTRATION OF PURPOSE, OR SIMILAR THEORIES. Owner's Initials 6.5 Attorneys' Fees. In the event of the bringing of an arbitration, action or suit by a Party hereto against another Party hereunder by reason of any breach of any of the covenants or agreements or any intentional inaccuracies in any of the representations and warranties on the part of the other Party arising out of this Agreement or any other dispute between the Parties concerning this Agreement or the Property , then, in that event, the prevailing Party in such action or dispute, whether by final judgment or arbitration award, shall be entitled to have and recover of and from the Rveue\caw45421 26 DRAFT 1.02.03 other Party all costs and expenses of suit or claim, including actual attomeys' and expert's fees. Any judgment, order or award entered in any final judgment or award shall contain a specific provision providing for the recovery of all costs and expenses of suit or claim, including actual attorneys' and expert's fees (collectively, "Costs ") incurred in enforcing, perfecting and executing such judgment or award. For the purposes of this Section 6.5, Costs shall include, without implied limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (i) post judgment motions and. appeals, (ii) contempt proceedings, (iii) garnishment, levy and debtor and third parry examination; (iv) discovery; and (v) bankruptcy litigation. This Section 6.5 shall survive any termination of this Agreement. 6.6 Submission of Documents and Other Actions for Approval. Except where such approval is expressly reserved to the sole discretion of the approving Party, all approvals required hereunder by either Party shall not be unreasonably withheld or delayed. Any requests for approval of documents submitted to the Agency shall contain the following all capitalized heading in no less than twelve (12) point bold type on the first page of the request: ATTENTION EXECUTIVE DIRECTOR: THIS IS A REQUEST FOR AGENCY APPROVAL OF THE ATTACHED DOCUMENT. PLEASE REVIEW THE MATERIAL AND APPROVE OR DISAPPROVE IT IN WRITING WITHIN THE TIME ESTABLISHED THEREFOR IN THE AGREEMENT OR SCHEDULE OF PERFORMANCE. FAILURE TO DISAPPROVE WITHIN THE ALLOTTED TIME MAY BE DEEMED AN APPROVAL. 6.7 Amendments to This Agreement., The Owner and the Agency agree to consider reasonable.requests for amendments to this Agreement which may be made by any of the Parties hereto, lending institutions, bond .counsel or financial consultants. Any amendments to this Agreement must be in writing and signed by the appropriate authorities of both the Agency and the Owner. The Agency's Executive Director is authorized on behalf of the Agency to approve and RVPUB\KC \\645421 27 DP-AFT 1.02.03 0 0 execute minor amendments to this Agreement, including, but not limited to, the granting of extensions of time to the Owner. 6.8 Jurisdiction and Venue. Any legal action or proceeding concerning this Agreement shall be filed and prosecuted in the appropriate federal district or state court in the County of Los Angeles, California. Each Party hereto irrevocably consents to the personal jurisdiction of that court. The Agency and the Owner each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including, without implied limitation, federal district court, due to any diversity of citizenship between the Agency and the Owner, due to the fact that either the City or the Agency is a party to such action or proceeding or due to the fact that a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the Owner and the Agency specifically waive any rights provided to, it pursuant to California Code of Civil Procedure Section 394. The Owner acknowledges that the provisions of this Section 6.8 are material consideration to the Agency for its entry into this Agreement, in that the Agency will avoid the potential cost, expense and inconvenience of litigating in a distant forum. 6.9 Interpretation. The Agency and the Owner acknowledge that this Agreement is the product of mutual arms - length negotiation and drafting and that each Party has been represented by legal counsel in the negotiation and drafting of this Agreement. Accordingly, the rule of construction which provides the ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Agreement. hi any action or proceeding to interpret or enforce this Agreement, the finder of fact may refer to any extrinsic evidence nain direct conflict with any specific provision of this Agreement to determine and give effect to the intention of the Parties. 6.10 Counterpart Originals; Integration. This Agreement maybe executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument. This Agreement, and its Exhibits, represent the entire understanding of the Parties and supersedes all negotiations and previous agreements, whether oral or written, between the Parties with respect to all or any part of the subject matter hereof. RVPU6\&C\\645421 28 DaAr'r 1.02.03 • • 6.11 No Waiver. Failure to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 6.12 Successors and Assigns: The terms, covenants and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and assigns. Except as provided in Section 4.12, upon the permitted sale, transfer or conveyance by an owner of the Property of its interest therein, such owner shall thereupon be.relieved of its obligations under this Agreement from and after the date of sale, transfer or conveyance except with respect to any defaults in the performance.of its obligations hereunder or thereunder which occurred prior to such sale, transferor conveyance, and the transferee shall thereafter be solely responsible for the performance of all of the duties and obligations of the Owner under this Agreement. 6.13 No Third Party Beneficiaries. The performance of the Agency's and the Owner's respective obligations under this Agreement are not intended to benefit any, party other than the Agency or the Owner, except as expressly provided otherwise herein. No person or entity not a signatory to this Agreement shall have any rights or causes, of action against any Party to this Agreement as a result of that Party's performance or non - performance under this Agreement, except as expressly provided otherwise herein. 6.14 No Effect on Eminent Domain Authority, Nothing in this Agreement shall be deemed to limit, modify, or abridge or affect in any manner whatsoever the Agency's and the City's eminent domain powers with respect to the Property or the Project, or any other property owned by the Owner. 6.15 Tax Effects. The Owner. acknowledges that the benefits to be received by Owner hereunder maybe taxable or have tax consequences pursuant to one or more provisions of the United States Internal Revenue Code or California Revenue & Taxation Code. The Owner acknowledges RVPUB\RP1645421 29 DRAPr 1.02.03 0 that neither the City nor the Agency has made any representations to the owner concerning the effect, if any, of such consequences and the Owner acknowledges that it has retained independent tax advice from advisors of its own choosing. The Owner shall be responsible for all tax consequences resulting from Owner's entry into this Agreement or from any benefits which Owner may receive pursuant to the provisions hereof. [Signatures on Following Pages] RVPUWKC\1645421 30 DRAT 1.02.03 SIGNATURE PAGE TO HERITAGE PARK OWNER PARTICIPATION AGREEMENT/LOAN AGREEMENT "AGENCY" THE ARCADIA REDEVELOPMENT AGENCY a public body, corporate and politic LE ATTEST: Agency Secretary APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP Agency Counsel William Kelly Executive Director aveue\cc\\sasazi 31 DRAFr1.02.03 SIGNATURE PAGE TO HERITAGE PARK OWNER PARTICIPATION AGREEMENT/LOAN AGREEMENT 1161 /►�hl:� AMERICAN SENIOR LIVING, INC. a California corporation 0 Roger Davila Vice - President ARCADIA HERITAGE PARK, LP a California limited partnership By: ASL ARCADIA, INC. a California corporation Its: Development General Partner Lo Roger Davila Vice - President By: HERITAGE COMMUNITY HOUSING, INC. a California non -profit corporation LE John Bigley Executive Vice - President RVPUB\KC1\645421 32 DRAFT 1.02.03 0 • STATE OF CALIFORNIA COUNTY OF LOS ANGELES ) Officer(s) Partner(s) Attorney -in -Fact Trustees) On , 2003, before me, the undersigned notarypublic, - Subscribing witness personally appeared personally known tom - Guardian/Consmator Other OR proved to me on the basis of satisfactory evidence to be the SIGNER Is REPRESENTING: person(s) whose name(s) is /are subscribed to the within instrument and NAME OF PERSON(s) OR M* rMTMS) acknowledged to me that he /she /they executed the same in his/her /the' ir authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public RVPUB\RC \645421 33 DRAFT 1.02.03 0 0 STATE OF CALIFORNIA COUNTY OF LOS ANGELES On , 2003, before me, the undersigned notary pul personally appeared , personally known to OR proved to me on the basis of satisfactory evidence to be person(s) whose name(s) is/are subscribed to the within instrument acknowledged to me that he /she /they executed the same in his/her /t authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public ICAPACITY CLAIMED BY SIGP Individual(s) Carporate Officer(s) Partner(s) Aftomey -in -Fact Trustee(s) Subscribing Witness Guardian/Conservator Other GNER IS REPRESENTING: tME OF PERSON(S) OR ENTITY(IES) RVPUB\KC\1645421 34 DRArr 1.02.03 • EXHIBIT A -1 TO HERITAGE PARK OWNER PARTICIPATION AGREEMENT/LOAN AGREEMENT Legal Description of Property The Property referred to in the Agreement is in the State of California, County of Los Angeles, and is described as follows: PARCELl : THE WEST 185.48 FEET OF THE EAST 768.00 FEET OF LOT 68 OF SANTA ANITA COLONY, IN THE CITY OF ARCADIA, AS PER MAP RECORDED IN BOOK 42 PAGE 87 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM THAT PORTION INCLUDED WITHIN THE LINES OF THE 80 FOOT STRIP OF LAND CONDEMNED FOR FLOOD CONTROL PURPOSES BY FINAL DECREE ENTERED IN CASE NO. 519554 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES, AS DESCRIBED IN CERTIFICATE OF TITLE NO. TV -61158 ON FILE IN THE OFFICE OF THE REGISTAR OF TITLES OF SAID COUNTY. PARCEL 2: THAT PORTION OF THE EASTERLY 582.52 FEET OF LOT 68 IN SANTA ANITA COLONY, AS SHOWN ON MAP RECORDED IN BOOK 42 PAGE 87 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING WITHIN THE FOLLOWING DESCRIBED BOUNDARIES: BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE :OF SAID EASTERLY 582.52 FEET ON SAID LOT AND THE NORTHERLY LINE OF LIVE OAK AVENUE, 100 FEET WIDE, AS SHOWN ON MAP OF TRACT 13935 RECORDED IN BOOK 285 PAGES 12 AND 14 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SIAD NORTHERY LINE NORTH 79 58'10" EAST 26.09 FEET TO THE WESTERLY SIDELINE OF THAT STRIP OF LAND, 80 FEET WIDE DESCRIBED IN PARCEL NO. 123 IN A FINALJUDGEMENT HAD IN SUPERIOR COURT CASE NO. 519554, RECORDED IN BOOK 25990 PAGE 156, OFFICIAL RECORDS: IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID WESTERLY LIVE NORTH 9 575 1 " WEST 166.89 FEET TO SAID WESTERLY LINE OF SAID EASTERLY 582.52 FEET OF SAID LOT; THENCE SOUTHERLY ALONG SIAD LAST MENTIONED WESTERLY LINE 168.96 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM 25% OF ALL OIL, GAS, AND HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND WITHOUT RIGHT OF SURFACE ENTRY, AS TO PARCELS 1 AND 2. RVPUBUCCV\641834 0 0 EXHIBIT B TO HERITAGE PARK OWNER PARTICIPATION AGREEMENT/LOAN AGREEMENT Scope of Development The Owner shall design, construct and operate the Project on the Property in accordance with this Agreement and the Loan Documents. The Project shall include a fifty four (54) Unit, three (3) story affordable senior housing development. As provided in this Agreement and the Loan Documents, fifty three (53) of the Units shall be restricted for use by very low income seniors for a period of at least fifty five (55) years. The Project, including the individual Units, parking area and grounds, shall be constructed consistent with the Owner's revised proposal and F & A Architectural plans dated May 28, 2002 (renderings and elevations); August 1, 2002; September 6, 2002 (site plan and floor plan); and December 26, 2002 (one bedroom plan and two bedroom plan). All costs for the Project, including but not limited to related on and off site costs and required governmental fees, assessments, taxes, surcharges, and the like shall be paid by the Owner. RVPUBT,CV\641834 9 • EXHIBIT C TO HERITAGE PARK OWNER PARTICIPATION AGREEMENT /LOAN AGREEMENT Schedule of Performance Pre Agency pproval of OPA t 1. The Owner shall provide, as reasonably requested all proforma construction and cost information related to the Project to the Agency and/or the Agency's housing consultant, and shall cooperate in the Agency's efforts to reduce the Agency's costs while maximizing the financial assistance to lower income seniors and constructing the Project to the City's design standards. 2. - Planning Commission approval of CUP /ADR 3. Owner shall negotiate and execute OPA Post Agency Approval of OPA 1. Agency shall approve OPA and related documents 2. Owner shall submit CHFA Bond application 3. Owner shall submit building plans for plan check 4. Owner shall submit tax credit applications S. Owner receives bond allocation Dec 2, 2002 Dec 10, 2002 Jan 7, 2003 Jan 21, 2003 Jan 31, 2003 Feb 21, 2003 Feb 22, 2003 Mar 21, 2003 6. Owner closes on land for development (Marketowne), City returns plans for Mar 28, 2003 correction. 7. Owner or Owner's consultant shall start tenant relocation program Mar 31, 2003 RVPUBUCCV1641834 Exhibit C 0 8. Owner shall re- submit building plans to City for permits 9. City shall return plans for final correction 10. Owner shall submit final plans for permits, pays fees 11. Owner shall close on CHPA bonds 12. Owner or Owner's consultant shall complete tenant relocation ID Apr 28, 2003 May 23, 2003 June 13, 2003 June 30, 2003 June 30, 2003 13. Owner shall begin construction. Upon completion of rough grading for the July 14,2003 foundation, the Agency shall pay Owner Progress Payment 1 - $540,000 Nov 30, 2003 14. Building framing and roof complete. 15. Construction complete, as determined by an authorized representative of the March 31, 2004 City. Agency shall pay Owner Progress Payment 2 - $900,000 16. Project begins residential operations and forty three (43) rental tenants move in. April 5, 2004 Agency shall pay Owner Progress Payment 3 - $360,000 17. Project is fully leased Aug 1, 2004 RVPUBV{cV\641834 Exhibit C 0 9 PROMISSORY NOTE $1,800,000 , 2003 Arcadia, California FOR VALUE RECEIVED, the undersigned, AMERICAN SENIOR LIVING, INC., a California corporation ( "Maker "), promises to pay to THE ARCADIA REDEVELOPMENT AGENCY, a public body, corporate and politic ( "Holder "), or order at Holder's office at 240 West Huntington Drive, Arcadia, California 91006 -6021, or such other place as Holder may designate in writing, the principal sum of One Million Eight Hundred Thousand Dollars ($1,800,000) together with interest as provided herein. 1. Related Agreements. The rights and obligations of Maker and Holder under this Promissory Note ( "Note ") are made with respect to that certain Heritage Park Owner Participation Agreement/Loan Agreement dated January 7, 2003 ( "Agreement "); that certain Deed of Trust and Assignment of Rents dated January 7, 2003 ( "Trust Deed "); and that certain Regulatory Agreement dated January 7, 2003 ( "Regulatory Agreement "). The Agreement, Trust Deed and Regulatory Agreement shall hereinafter be collectively referred to as the "Related Agreements." All initially capitalized terms used and not otherwise defined in this Note shall have the meanings given to them in the Agreement. 2. Repayment of Note. Maker will pay to Holder the principal amount of this Note, and any accrued interest ( "Payment Amount ") as follows: 2.1 From the date of this Note until paid in full, the unpaid principal balance of this Note will bear simple interest computed at the rate of three percent (3 %) per annum, compounded annually. 2.2 Interest shall be computed on the basis of a year of three hundred sixty (360) days and actual days elapsed and shall be payable on the unpaid principal balance hereof outstanding annually as set forth in Section 2.3 until the Payment Amount is paid in full. 2.3 From the net proceeds of the Project, Maker shall pay to Holder for the account of Holder an amount equal to the entire outstanding principal balance of this Note plus any accrued interest no later than thirty (30) years from the date of this Note ( "Maturity Date "). The foregoing notwithstanding, the final payment of this Note, which will be in an amount equal to the entire then outstanding principal balance of this Note, together with all accrued and unpaid interest, shall be payable form any available funds of Maker on the Maturity Date. 2.4 The Payment Amount may be prepaid, without penalty, in whole or in part, at anytime prior to the Maturity Date. The foregoing notwithstanding, prepayment shall not relieve the Maker of the covenants, conditions and obligations set forth in this Note or the Related Agreements. RVPU9VCCNb41934 Exhibit D • • 2.5 Maker's obligations under this Note and the Related Agreements are absolute and not contingent upon Maker's completion of the Project, Maker's ability to locate tenants to occupy the Project on the Property, or any other condition. 2.6 All payments due hereunder are payable in lawful money of the United States of America in same day funds. Any payments made shall be applied first to accrued interest and thereafter to reduction of principal. 2.7 In the event Maker fails to make the required payment of principal and/or interest under this Note within ten (10) business days after such payment becomes due and payable, a late charge of five percent (5 %) of the overdue payment of principal and/or interest (or of principal only if by the laws of the State of California a late charge may not be charged on overdue interest) may be charged by Holder, unless applicable law requires a lesser such charge, in which event the maximum rate permitted by such law may be charged by Holder. The parties agree that this late charge represents a reasonable sum considering all of the circumstances existing on the date of this Note and represents a fair and reasonable estimate of the costs and damages that Holder will incur by reason of the late payment. The parties further agree that proof of actual, damages would be costly or inconvenient. Acceptance of any late charge shall not constitute a waiver of the default with respect to the overdue amount, and shall not prevent Holder from exercising any of the other rights and remedies available to Holder., The foregoing shall not be construed as obligating the Holder to accept any payment after its due date. 3. Security. This Note is secured by the Trust Deed. 4. Default. An "Event ofDefault" shall be deemed to occur upon any material breach of an obligation under either this Note or the Related Agreements, if the breach is not cured within ten (10) business days after Trustor receives initial notice of such breach. Furthermore, any event defined as a "Default" or "Event of Default" under the Related Agreements shall constitute an Event of Default under this Note. The foregoing notwithstanding, upon the occurrence of any of the following, an Event of Default shall be deemed to have occurred and the Holder may, at Holder's option, without prior notice, accelerate the Maturity date to the Event of Default date and declare the unpaid balance of this Note to be immediately due and payable, and the same shall immediately become due and payable: 4.1 Maker fails to make any payment under this Note when due or within ten (10) business days following written notice of such failure from Holder; or 4.2 Maker (i) becomes insolvent or unable to pay Maker's debts generally as they mature, (ii) makes a general assignment for the benefit of creditors, (iii) admits in writing Maker's inability to pay Maker's debts generally as they mature, (iv) files or has filed against it a petition in bankruptcy or a petition or answer seeking a reorganization, arrangement with creditors or other similar relief under the Federal bankruptcy, laws or under any other applicable law of the United States of America or any state thereof, or (v) consents to the appointment of a trustee or receiver for it or for a substantial part of Maker's property; or 4.3 Any order, judgment or decree is entered appointing, without Maker's consent, eveoeaccvw41e34 Exhibit D a trustee or receiver for it or for a substantial part of Maker's property that is not removed within sixty (60) business days from such entry; or 4.4 A judgment against Maker for the payment of money totaling in excess of Two Hundred Fifty Thousand Dollars ($250,000) is outstanding for a period of sixty (60) business days without a stay of execution thereof; or 4.5 Maker fails to materially comply with any obligation required of it pursuant to this Note, the Related Agreements, or any other agreement between Maker and Holder. Notwithstanding the above, in the event of an actual or deemed entry of an order for relief with respect to Maker under the Federal Bankruptcy Code, this Note and all interest and other amounts due hereon shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by Maker. The Holder may exercise Holder's option to accelerate after any Event of Default, regardless of anyprior forbearance. 5. Indemnification. Maker agrees to indemnify Holder to hold Holder and Holder's successors and assigns harmless from and against any and all claims, demands, costs, liabilities and obligations of any kind or nature arising out of any default hereunder, including, without limitation, all costs of collection, including actual attorneys' and expert witness fees and all costs of suit, in the event the unpaid principal sum of this Note and/or any interest thereon is not paid when due. 6. Amendments and Modifications. This Note may be amended or modified only in writing signed by Maker and Holder. 7. Severability. The unenforceability or invalidity of any provision or provisions of this Note as to any persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other person or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable. 8. Successors and Assigns. This Note shall bind Maker and Maker's successors and assigns and the benefits hereof shall inure to Holder and Holder's successors and assigns. 9. Governing Law. The validity, interpretation and performance of this Note shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of laws principles. 10. Time of the Essence. Time is of the essence of this Note. 11. Joint and Several Obligation. Maker and all other persons liable or to become liable for all or part of this indebtedness, jointly and severally waive demand, presentment for payment, notice of nonpayment, protest and notice of protest hereon, and agree to pay, in the Event of Default hereunder, all costs of collection, including attorneys fees', whether or not suit is commenced. RVP[.B\KCVN641834 Exhibit D 12. Jurisdiction. The Holder and the Maker acknowledge and stipulate that the obligation hereunder was entered into in the City of Arcadia, Los Angeles County, California. Any legal action or proceeding to interpret, enforce, or which in any way arises out of this Note shall be instituted and prosecuted in the appropriate court in Los Angeles County, California. Maker expressly waives, to the maximum legal extent, any legal right it may have to have such action or proceeding transferred to or prosecuted in any other court or jurisdiction. 13. Attorneys' Fees. Maker agrees that if any amounts due under this Note are not paid when due, Maker shall pay in addition, all costs and expenses of collection and reasonable attorneys' fees paid or incurred in connection with the collection or enforcement of this Note, whether or not a suit is filed. [Signatures on Following Page] RVPUB\RCW41834 Exhibit D 0 9 "MAKER" AMERICAN SENIOR LIVING, INC. a California corporation Roger Davila Vice - President ARCADIA HERITAGE PARK, LP a California limited partnership By: ASL ARCADIA, INC. a California corporation Its: Development General Partner M Roger Davila Vice - President By: HERITAGE COMMUNITY HOUSING, INC. a California non -profit corporation John Bigley Executive Vice - President RVPUBUKCV\641834 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The Arcadia Redevelopment Agency 240 West Huntington Drive Post Office Box 60021 Arcadia, California 91006 -6021 Attn: Executive Director fFee Exempt -Govt Code '61031 (Space above for Recorder's Use) HERITAGE PARK OWNER PARTICIPATION AGREEMENT / LOAN AGREEMENT DEED OF TRUST AND ASSIGNMENT OF RENTS THIS DEED OF TRUST AND ASSIGNMENT OF RENTS ( "Deed of Trust "), dated January 7,1003, is made by AMERICAN SENIOR LIVING, INC., a California corporation, whose address is 1740 East Gary Avenue, Suite 105, Santa Ana, California ( "Trustor "), in favor of I * ** * * *1 a I * ** * * *] ( " Trustee "), and THE ARCADIA REDEVELOPMENT AGENCY, a public body, corporate and politic, whose address is 240 West Huntington Drive, Post Office Box 60021, Arcadia, California 91006 -6021 ( "Beneficiary"), and is executed to secure, that certain Promissory Note of even date herewith ( "Note "), in the principal amount of One Million Eight Hundred Thousand Dollars ($1,800,000), executed by Trustor in favor of Beneficiary. This Deed of Trust is made with respect to the Note; that certain Heritage Park Owner Participation Agreement/Loan Agreement dated January 7, 2003 ( "Agreement "); and that certain Regulatory Agreement dated January 7, 2003 ( "Regulatory Agreement "). All initially capitalized terms used and not otherwise defined in this Deed of Trust shall have the meanings given to them in the Agreement. 1. Grant in Trust and Security Agreement. For valuable consideration, Trustor irrevocably grants, transfers and assigns to Trustee, in trust, with power of sale, for the benefit of Beneficiary, the following property ( "Trust Estate "): 1.1 the real property described in Exhibit A attached to this Deed of Trust and incorporated in this Deed of Trust by reference ( "Land "); 1.2 all buildings, structures and other improvements now or in the future located or to be constructed on the Land ( "Improvements "); and 1.3 all tenements, hereditaments, appurtenances, privileges and other rights and interests now or in the future benefitting or otherwise relating to the Land or RVPUBUCCV1641834 - E -1 the Improvements, including easements, rights -of -way, development rights, mineral rights, water rights and water stock ( "Appurtenances," and together with the Land and the Improvements, 'Real Property"). 2. Obligations Secured. This Deed of Trust is given for the purpose of securing payment and performance of the following ( "Secured Obligations "): 2.1 all present and future indebtedness evidenced by the Note, including principal, interest and all other amounts payable under the terms of the Note; 2.2 all present and future obligations of Trustor to Beneficiary under this Deed of Trust; and 2.3 all additional present and future obligations of Trustor to Beneficiary under the Agreement, Regulatory Agreement or any other agreement or instrument (whether existing now or in the future) which states that it is, or such obligations are, secured by this Deed of Trust; in each case as such indebtedness and other obligations may from time to time be supplemented, modified, amended, renewed and extended, whether evidenced by new or additional documents or resulting in a change in the interest rate on any indebtedness or otherwise. 3. Trustor's Covenants. To protect the security of this Deed of Trust, Trustor agrees as follows: 3.1 Payment and Performance of Secured Obligations; Purchase Agreement. Trustor shall pay and perform all Secured Obligations in accordance with the respective terms of such Secured Obligations, whether evidenced by or arising under this Deed of Trust or the Note. 3.2 Maintenance of Trust Estate. Unless Beneficiary otherwise consents in writing, Trustor shall: 3.2.1 keep the Trust Estate in good condition and repair, and promptly and in a good and workmanlike manner (and with new materials of good quality) complete any Improvements to be constructed on the Land, repair or restore any part of the Real Property that may be injured, damaged or destroyed, and repair, restore or replace any goods that may be injured, damaged, destroyed or lost or that may be or become obsolete, defective or worn out (except that Trustor shall not be required to repair, restore or replace any such goods of insignificant value which are not reasonably necessary or appropriate to the efficient operation of the Real Property), and in each case pay when due all valid claims for labor; service, equipment and material and any other costs incurred in connection with any such action; 3.2.2 not remove, demolish or materially alter any Improvements; RVPUMKC V�641934 E-2 3.2.3 not commit or permit any waste of any part of the Trust Estate; 3.2.4 comply in all material respects with all and other requirements, and not commit or permit any material violation of any laws or other requirements, which affect any part of the Trust Estate or require any alterations or improvements to be made to any part of the Trust Estate; 3.2.5 . take such action from time to time as may be reasonably necessary or appropriate, or as Beneficiary may reasonably require, to protect the physical security of the Trust Estate; 3.2.6 except as otherwise permitted by the Agreement, not part with possession of or abandon any part of the Trust Estate or cause or permit any interest in any part of the Trust Estate to be sold, transferred, leased, encumbered, released, relinquished, terminated or otherwise disposed of (whether voluntarily, by operation of law or otherwise); and 3.2.7 take all other action which may be reasonably necessary or appropriate to preserve, maintain and protect the Trust Estate, including the enforcement or performance of any rights or obligations of Trustor or any conditions with respect to any Rights. 3.3 Assignment of Rents, Issues and Profits. Trustor hereby assigns and transfers absolutely to the Beneficiary all of the rents from the Units and hereby gives to and confers upon the Beneficiary the right, power and authority to collect such rents at such times and upon the occurrence of such events as provided herein. Trustor irrevocably appoints the Beneficiary, its true and lawful attorney -in -fact, at its option, at any time and from time to time, to demand, receive and enforce payment, to give receipts, releases and satisfactions, and to sue, in its name or in the name of Trustor, for all such rents, and apply the same to the obligations secured hereby; provided, however, that Trustor shall have the right to collect such rents (but no more than one (1) month in advance unless the written approval has first been obtained), and to retain and enjoy the same, so long as an Event of Default shall not have occurred hereunder or, if occurred, be cured as provided hereunder. The assignment of rents in this Section3.3 is intended to bean absolute assignment from Trustor to the Beneficiary and not merely the passing of a security interest. The foregoing power of attorney is coupled with an interest and cannot be revoked. 3.4 Insurance, Condemnation and Damage Claims. Trustor shall maintain the commercial, general liability and automobile insurance policies covering the Improvements and Real Property in the amounts set forth below: (a) $1,000,000 for any one person; and (b) $3,000,000 for any one occurrence; and (c) $1,000,000 for any property damage. RVPUB\KM641834 E -3 0 i The policies shall be "occurrence," not "claims made," policies and shall be primary and non- contributing to any insurance that the Beneficiary may elect to obtain. Such policies shall contain a full waiver of subrogation clause. The policies shall be issued by a carrier licensed to do business in California, with a then- current Best's rating of A: VIII or better. Said policies shall provide that they shall not be canceled or reduced in types of coverage or amount of coverage without at least thirty (30) business days' prior written notice to the Beneficiary and that such reduction or cancellation shall become effective until at least twenty (20) business days after receipt by the Beneficiary of the written notice thereof. All proceeds of any claim, demand, award, settlement or other payment arising or resulting from or otherwise relating to any loss or destruction of, injury or damage to, trespass on or taking, condemnation (or conveyance in lieu of condemnation) or public use of any of the Property ( "Damage Claim ") are assigned and shall be payable and delivered to Beneficiary (any such proceeds of any Damage Claim being referred to in this Deed of Trust as "Damage Proceeds "). Trustor shall take all action reasonably necessary or required by Beneficiary in order to protect Trustor's and Beneficiary's rights and interests with respect to any Damage Claim, including the commencement of, appearance in and prosecution of any appropriate action or other proceeding, and Beneficiary may in its discretion participate in any such action or proceeding at the expense of Trustor. So long as no Event of Default, as defined in Section 3.8 of this Deed of Trust, has occurred and is continuing, Trustor may settle, compromise or adjust any Damage Claim with the prior written consent of Beneficiary (which shall not be unreasonably withheld). Upon the occurrence and during the continuance of any Event of Default, Beneficiary shall have the sole right to settle, compromise or adjust any Damage Claim in such manner as Beneficiary may determine, and for this purpose Beneficiary may, in its own name or in the name of Trustor, take such action as Beneficiary deems appropriate to realize on any such Damage Claim. In either case, all_ Damage Proceeds payable in connection with any such Damage Claim shall be delivered directly to Beneficiary as provided in the preceding paragraph. Any Damage Proceeds received by Beneficiary may be applied by Beneficiary in payment of the Secured Obligations in such order and manner as Beneficiary may determine, provided that so long as no Event of Default has occurred and is continuing, Beneficiary shall release such Damage Proceeds to Trustor for the Restoration of the Trust Estate in the Beneficiary s sole discretion, except that Beneficiary shall not be required to release such Damage Proceeds (and may apply such Damage Proceeds to the Secured Obligations as set forth above) to the extent that such Damage Proceeds relate to any condemnation, seizure or other appropriation by any governmental agency of all or any portion of the Trust Estate (including Damage Proceeds payable in. lieu of any such action), or if Beneficiary has reasonably determined that the security of this Deed of Trust has been impaired, or will be impaired upon the release of Damage Proceeds to Trustor. 3.5 Liens and Taxes. Subject to the right of Trustor to contest any such payments in accordance with.the terms of the Agreement, (i) Trustor shall pay, prior to delinquency, all taxes, if any, which are or maybecome a lien affecting any part of the Trust Estate (including assessments on appurtenant water stock), and (ii) Trustor shall pay and perform when due all other obligations secured by or constituting a lien affecting any part of the Trust Estate. RVPUBUCCVU41834 E -4 0 0 3.6 Actions. Trustor shall appear in and defend any claim or any action or other proceeding purporting to affect title or other interests relating to any part of the Trust Estate, the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee, and give Beneficiary prompt written notice of any such claim, action or proceeding. Beneficiary and Trustee may, at the expense of Trustor, appear in and defend any such claim, action or proceeding and any claim, action or other proceeding asserted or brought against Beneficiary or Trustee in connection with or relating to any part of the Trust Estate or this Deed of Trust. 3.7 Action by Beneficiary or Trustee. If Trustor fails to perform any of its obligations under this Deed of Trust, Beneficiary or Trustee may, but without any obligation to do so and without notice to or demand upon Trustor and without releasing Trustor from any obligations under this Deed of Trust, and at the expense of Trustor: (a) perform such obligations in such manner and to such extent and make, such payments and take such other action as either may deem necessary in order to protect the security of this Deed of Trust, Beneficiary or Trustee being authorized to enter upon the Property for such purposes, (b) appear in and defend any claim or any action or other proceeding purporting to affect title or other interests relating to any part of the Trust Estate, the security of this Deed of Trust or the rights or powers of Beneficiary of Trustee, and (c) pay, purchase, contest or compromise any lien or right of others which in the reasonable judgment of either is or appears to be or may for any reason become prior or superior to this Deed of Trust. If Beneficiary or Trustee shall elect to pay any such lien or right of others or any taxes which are or may become alien affecting any part of the Trust Estate or make any other payments to protect the security of this Deed of Trust, Beneficiary or Trustee may do so without inquiring into the validity or enforceability of any apparent or threatened lien, right of others or taxes, and may pay any such taxes in reliance on information from the appropriate taxing authority or public office without further inquiry. 3.8 Obligations With Respect to Trust Estate. Neither Beneficiary nor Trustee shall be under any obligation to preserve, maintain or protect the Trust Estate or any of Trustor's rights or interests in the Trust Estate, or make or give any presentments, demands for performance, protests, notices of nonperformance, protest or dishonor or other notices of any kind in connection with any Rights, or take any other action with respect to any other matters relating to the Trust Estate. Beneficiary and Trustee do not assume and shall have no liability for, and shall not be obligated to perform, any of Trustor's obligations with respect to any Rights or any other matters relating to the Trust Estate, and nothing contained in this Deed of Trust shall release Trustor from any such obligations. 3.9 Default. An "Event of Default" shall be deemed to occur upon any material breach of an obligation under any of the following: (i) this Deed of Trust; (ii) the Note; (iii) the Agreement; or (iv) the Regulatory Agreement, if the breach is not cured within ten (10) business days after Trustor receives initial notice of such breach. Furthermore, any event defined as a "Default" or "Event of Default" under the Note, the Agreement or the Regulatory Agreement shall constitute an Event of Default under this Deed of Trust. Upon the occurrence of any Event of Default: (i) Trustor shall be in default under this Deed of Trust, and upon acceleration of the Maturity Date of any Secured Obligations in accordance with the terms of the Note, all Secured Obligations shall immediately become due and payable without further notice to Trustor; (ii) upon demand by Beneficiary, Trustor shall pay to Beneficiary, in RVPU13WCVIM1834 E-5 0 addition to all other payments specifically required under the Note, in monthly installments, at the times and in the amounts required by Beneficiary from time to time, sums which when cumulated will be sufficient to pay one month prior to the time the same become delinquent, all Taxes which are or may become a Lien affecting the Trust Estate and the premiums for any policies of insurance to be obtained hereunder (all such payments to be held in a cash collateral account as additional security for the Secured Obligations over which Beneficiary shall have sole and exclusive control and right of withdrawal); and (iii) Beneficiarymay, without notice to or demand upon Trustor, which .are expressly waived by Trustor (except for notices or demands otherwise required by applicable Laws to the extent not effectively waived by Trustor and any notices or demands specified below), and without releasing Trustor from any of its Obligations, exercise any one or more of the following Remedies as Beneficiary may determine: 3.9.1 Beneficiary may, either directly or through an agent or court- appointed . receiver, and without regard to the adequacy of any security for the Secured Obligations: (i) enter, take possession of, manage, operate, protect, preserve and maintain, and exercise any other rights of an owner of the Trust Estate, and use any other properties or facilities of Trustor relating to the Trust Estate, all without payment of rent or other compensation to Trustor; (ii) enter into such contracts and take such other action as Beneficiary deems appropriate to complete all or any part of any construction which may have commenced on the Land, subject to such modifications and other changes in the plan of development as Beneficiary may deem appropriate; (iii) make, cancel, enforce or modify leases, obtain and evict tenants, fix or modify rents and, in its own name or in the name of Trustor, otherwise conduct any business of Trustor in relation to the Trust Estate and deal with Trustor's creditors, debtors, tenants, agents and employees and any other. Persons having any relationship with Trustor in relation to the Trust Estate, and amend any contracts between them, in any manner Beneficiary may determine; (iv) endorse, in the name of Trustor, all checks, drafts and other evidences of payment relating to the Trust Estate, and receive, open and dispose of all mail addressed to Trustor and notify the postal authorities to change the address for delivery of such mail to such address as Beneficiary may designate; and (v) take such other action as Beneficiary deems appropriate to protect the security of this Deed of Trust. RVPUBH4CV\641874 E -6 Beneficiary's agent or court- appointed receiver shall hold all monies and proceeds, including, without limitation, proceeds from the sale of the Trust Estate or any portion thereof, for the benefit of the Trustor and shall not disburse the monies or proceeds for the satisfaction of the Secured Obligations without the prior written consent of Beneficiary. The Beneficiary's agent or court- appointed receiver may, but without any obligation to do so and without notice to or demand upon Trustor and without releasing Trustor from any Obligations under this Deed of Trust, and at the expense of Trustor, follow the written instruction of Beneficiary under this Section 3.9. 3.9.2 Beneficiary may execute and deliver to Trustee written declaration of default and demand for sale and written notice of default and of election to cause all or any part of the Trust Estate to be sold, which notice Trustee shall cause to be filed for record; and after the lapse of such time as may then be required by law following the recordation of such notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell such Trust Estate at the time and place fixed by it in such notice of sale, either as a whole or in separate parcels and in such order as Beneficiary may direct (Trustor waiving any right to direct the order of sale), at public auction to the highest bidder for cash in lawful money of the United States (or cash equivalents acceptable to Trustee to the extent permitted by applicable law), payable at the time of sale. Trustee may postpone the sale of all or any part of the Trust Estate by public announcement at such time and place of sale, and from time to time after any such postponement may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to the purchaser at such sale its deed conveying the Trust Estate so sold, but without any covenant or warranty, express or implied, and the recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustee or Beneficiary, may purchase at such sale, and any bid by Beneficiary may be, in whole or in part, in the form of cancellation of all or any part of the Secured Obligations. Any such sale shall be free and clear of any interest of Trustor and any lease, encumbrance or other matter affecting the Trust Estate so sold which is subject or subordinate to this Deed of Trust, except that any such sale shall not result in the termination of any such lease (i) if and to the extent otherwise provided in any estoppel or other agreement executed by the tenant and Beneficiary (or executed by the tenant in favor of, and accepted by, Beneficiary), or (ii) if the purchaser at such sale gives written notice to the tenant, within thirty (30) business days after date of sale, that the lease will continue in effect. 3.9.3 Beneficiary may proceed to protect, exercise and enforce any and all other Remedies provided under the Note, the Agreement, the Regulatory Agreement, this Deed of Trust or by applicable Laws. All proceeds of collection, sale or other liquidation of the Trust Estate shall be applied first to all costs, fees, expenses and other amounts (including interest) payable by Trustor under this Deed of Trust and to all other Secured Obligations not otherwise_repaid in such order and manner as Beneficiary may determine, and the remainder, if any, to the Person or Persons legally entitled thereto. Each of the Remedies provided in this Deed of Trust is cumulative and not exclusive of, and shall not prejudice, any other Remedy provided in this Deed of Trust or by applicable Laws. Each Remedy may be exercised from time to time as often as deemed necessary by Trustee and Beneficiary, and in such order and manner as Beneficiary may determine. This Deed of Trust is RVPURUCCV\641834 E -7 0 independent of any other security for the Secured Obligations, and upon the occurrence of an Event of Default, Trustee or Beneficiary may proceed in the enforcement of this Deed of Trust independently of any other Remedy that Trustee or Beneficiary may at any time hold with respect to the Trust Estate or the Secured Obligations or any other security. Trustor, for itself and for any other Person claiming by or through Trustor, waives, to the fullest extent permitted by applicable Laws, all rights to require a marshaling of assets by Trustee or Beneficiary or to require Trustee or Beneficiary to first resort to any particular portion of the Trust Estate or any other security (whether such portion shall have been retained or conveyed by Trustor) before resorting to any other portion, and all rights of redemption, stay and appraisal. Upon the occurrence of a transfer of the Trust Estate or any part of it or interest in it is transferred, sold, or alienated ( "Event of Default "), Trustor shall be in default under this Deed of Trust and the Note shall become due and payable without further notice to Trustor at the option of the Beneficiary. 3.10 Costs, Fees and Expenses. Trustor shall pay, on demand, all costs, fees, expenses, advances, charges, losses and liabilities of Trustee and Beneficiary under or in connection with this Deed of Trust or the enforcement of, or the exercise of any Remedy or any other action taken by Trustee or Beneficiary under, this Deed of Trust or the collection of the Secured Obligations, in each case including (a) reconveyance and foreclosure fees of Trustee, (b) costs and expenses of Beneficiary or Trustee or any receiver appointed under this Deed of Trust in connection with the operation, maintenance, management, protection, preservation, collection, sale or other liquidation of the Trust Estate or foreclosure of this Deed of Trust, (c) advances made by Beneficiary to complete or partially construct all or any part of any construction which may have commenced on the Land or otherwise to protect the security of this Deed of Trust, (d) cost of evidence of title, and (e) the reasonable fees and disbursements of Trustee's and Beneficiary's legal counsel and other out - of- pocket expenses, and the reasonable charges of Beneficiary's internal legal counsel. 3.11 Late Payments. By accepting payment of any part of the Secured Obligations after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other Secured Obligations or to declare a default for failure to so pay. 3.12 Action by Trustee. At any time and from time to time upon written request of Beneficiary and presentation of this Deed of Trust for endorsement, and without affecting the personal liability of any Person for payment of the Secured Obligations or the security of this Deed of Trust for the full amount of the Secured Obligations on all property remaining subject to this Deed of Trust, Trustee may, without notice and without liability for such action, and notwithstanding the absence of any payment on the Secured Obligations or any other consideration: (a) reconvey all or any part of the Trust Estate, (b) consent to the making and recording, or either, of any map or plat of the Land, (c) join in granting any easement affecting the Land, or (d) join in or consent to any extension agreement or any agreement subordinating the Lien of this Deed of Trust. Trustee is not obligated to notify Trustor or Beneficiary of any pending sale under any other deed of trust or of any action or other proceeding in which Trustor, Beneficiary or Trustee is a party unless brought by Trustee. RVPU13VCCV\641834 E_8 0 • 3.13 Reconveyance. Upon written request of Beneficiary and surrender of this Deed of Trust and the Note to Trustee for cancellation or endorsement, and upon payment of its fees and charges, Trustee shall reconvey, without warranty, all or any part of the property then subject to this Deed of Trust. Any reconveyance, whether full or partial, may be made in terms to "the person or persons legally entitled thereto," and the recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. Beneficiary shall not be required to cause any property to be released from this Deed of Trust until final payment and performance in full of all Secured Obligations and termination of all obligations of Beneficiary under or in connection with the Note or until the Secured Obligations are forgiven. 3.14 Substitution of Trustee. Beneficiary may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named in or acting under this Deed of Trust, which instrument, when executed by Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where the Land is situated, shall be conclusive proof ofproper substitution of such successor Trustee or Trustees who shall, without conveyance from the predecessor Trustee, succeed to all of its title, estate, rights, powers and duties. Such instrument must contain the name of the original Trustor, Trustee and Beneficiary, the book and page where this Deed of Trust is recorded (or the date of recording and instrument number) and the name and address of the new Trustee. 3.15 Attorney -in -Fact. Trustor appoints Beneficiary as Trustor's attomey -in -fact, with full authority in the place of Trustor and in the name of Trustor or Beneficiary, to take such action and execute such Documents as Beneficiary may reasonably deem necessary or advisable in connection with the exercise of any Remedies or any other action taken by Beneficiary or Trustee under this Deed of Trust. 3.16 Successors and Assigns. This Deed of Trust applies to and shall be binding on and inure to the benefit of all parties to this Deed of Trust and their respective successors and assigns. 3.17 Acceptance. Notice of acceptance of this Deed of Trust by Beneficiary or Trustee is waived by Trustor. Trustee accepts this Deed of Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. 3.18 Beneficiary's Statements. For any statement regarding the Secured Obligations, Beneficiary may charge the maximum amount permitted by law at the time of the request for such statement. 3.19 Governing Law. This Deed of Trust shall be governed by, and construed and enforced in accordance with, the Laws of California. 3.20 Request for Notice. Trustor requests that a copy of any notice of default and a copy of any notice of sale be mailed to Trustor at Trustor's address set forth above. [Signatures on Following Pages] RVPUBVCCV1641834 E -9 0 • "TRUSTEE" AMERICAN SENIOR LIVING; INC. a California corporation Date: By: Roger Davila Vice - President ARCADIA HERITAGE PARK, LP a California limited partnership By: ASL ARCADIA, INC. a California corporation Its: Development General Partner By: Roger Davila Vice - President By: HERITAGE COMMUNITY HOUSING, INC. a California non -profit corporation By: John Bigley Executive Vice - President "TRUSTOR" a Date: - By: Its: RVPUBWCV\641834 I E_10 0 0 "BENEFICIARY" THE ARCADIA REDEVELOPMENT AGENCY a public body, corporate and politic M William Kelly Executive Director ATTEST: L Agency Secretary APPROVED AS TO LEGAL FORM BEST BEST & KRIEGER LLP Agency Counsel RVPUB\KCV \641834 E -11 0 STATE OF CALIFORNIA COUNTY OF LOS ANGELES On , 2003, before me, the undersigned notary public, personally appeared personally known to me OR proved to me on the basis of satisfactor} evidence to be the person(s) whose name(s) Ware subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public 0 Partner(s) Attorney -in -Fact Trustee(s) Subscribing Witness Guardian/Conservator Other SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IF.S) RVPUEIKCV,641834 E -13 E STATE OF CALIFORNIA COUNTY OF LOS ANGELES On , 2003, before me, the undersigned notary public, personally appeared personally known to me OR proved to me on the basis of satisfactor} evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public E — Corporate Officer(s) Partner(s) — Attorney -in -Fact Trustee(s) Subscribing witness Guardian/Conservator Other SIGNER IS REPRESENTING: NAME OF PERSON(S) OR EN IMUES) RVPUEVCCVN641834 E -14 STATE OF CALIFORNIA - COUNTY OF LOS ANGELES On , 2003, before me, the undersigned notary public, personally appeared personally known to me OR proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public — Corporate Officer(s) — Partner(s) — Attorney -in -Fact — Trustee(s) — Subscribing Witness — Guardian/Conservator :R IS REPRESENTING: OF PERSON(S) OR EtMTY(IES) RVPU]3%CV`641634 F -4 0 0 HERITAGE PARK REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS THIS HERITAGE PARK REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS ('Regulatory Agreement ") is dated as of January 7, 2003, for reference purposes only, and is by and between (i) THE ARCADIA REDEVELOPMENT AGENCY ( "Agency "), a public body, corporate and politic; and (ii) AMERICAN SENIOR LIVING, INC. ( "Owner "), a California corporation. RECITALS A. Agency and the Owner have entered into those certain agreements entitled: (i) "Heritage Park Owner Participation Agreement / Loan Agreement" ( "Agreement ") dated as of January 7, 2003; (ii) 'Promissory Note" ( "Note ") dated as of January7, 2003; and (iii) "Deed of Trust with Assignment of Rents" ( "Trust Deed "), dated as of January 7, 2003. The Agreement, Note, and Trust Deed shall hereinafter be collectively referred to as the 'Related Agreements." B. Pursuant to the Agreement, Owner will construct a fifty four (54) unit multi - family senior residential housing project to be commonly known as the Heritage Park Senior Housing Project ('Project') on real property ('Property") legally described on the attached Exhibit A and commonly knows as 150 West Las Tunas Drive, within the City of Arcadia, California. C. Owner is willing to enter into this Regulatory Agreement to assure the Agency ofthe operation of the Project for the purposes of increasing and improving the community's supply ofvery low- income housing. D. Under the provisions of the California Community Redevelopment Law (California Health & Safety Code Sections 33000 et seq.), the Agency is required to set aside twenty percent (20 %) of its general property tax increment allocation to be used for the purposes of increasing, providing and preserving the community supply of low- and moderate- income housing available at affordable housing costs to persons of low- and moderate - income. E. Pursuant to the provisions of California Health & Safety Code Section 33334.3, such funds as must be held in a separate low- and moderate - income housing fund ( "Housing Fund ") until used. F. Owner has requested that Agency provide funds from its Housing Fund to assist in the acquisition, development and operation of the Project. G. Owner has agreed that, in return for financial assistance from the City and the Agency, Owner will construct, operate and maintain the Project to provide apartment units at affordable rents for senior persons of very low income. RVPUBUCCVW47874 G -2 E H. Owner has requested and will receive the referenced financial assistance from the City and the Agency in connection with Owner's construction of the Project. I. As a condition to the willingness of the Agency to provide such financial assistance to the City for the benefit of the Owner and the Project, Owner has agreed to rent or lease or hold available for rent or occupancy, fifty three (53) of the available apartment Units within the Project for rent to senior persons of very low income, all for the public purpose of assisting such individuals to afford the cost of decent; safe, and sanitary housing. To facilitate the same, Owner is willing to enter into certain restrictions upon the ownership and operation of the Project which will bind the Project and Owner, its successors and assigns, for the entire term of this Regulatory Agreement. The purpose of this Regulatory Agreement is to create such easements, conditions, covenants, restrictions, liens, servitudes, and charges in favor of the Agency upon and subject to which the Project and each and every part and portion thereof shall be occupied, owned, maintained, held, leased, rented, sold, and conveyed. The provisions of this Regulatory Agreement shall run with each and every portion of the Project and shall inure to and pass with each and every portion thereof and shall apply to and bind any successors -in- interest of Owner. Each of the provisions hereof is imposed upon the Project as mutual and reciprocal equitable servitudes in favor of each and every other portion of the Project. NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Agency and the Owner hereby agree as follows: ARTICLE 1. DEFINITIONS AND INTERPRETATION 1.1 General Definitions Initially capitalized terms used herein shall have the following meanings unless the context in which they are used clearly requires otherwise. 1.2 Income Restrictions: Definitions "Affordable Rent" shall mean a the monthlyrent charged to a Qualifying Household of a Unit which shall be no greater than that allowed as an "affordable rent" by California Health & Safety Code Section 50053, as amended or substituted, for the Qualifying Household. "Agency" shall mean the Arcadia Redevelopment Agency. "City" shall mean the City of Arcadia. "HUD" shall mean the United State Department of Housing and Urban Development. "Median Income" shall mean the median income adjusted by actual household size as published annually by HUD for the County of Los Angeles, which Median Income levels shall be adjusted in the future concurrently with publication of adjustment of the same by HUD. "Qualified Household" means households meeting all of the following criteria: RVPUBVCCV\641874 G -3 (i) At least one of the residents in the household is a "Qualifying Resident" or "Senior Citizen" as defined by California Civil Code Section 51.3(c)(1); (ii) Every member of the household who is not a "Qualifying Resident' or "Senior Citizen" as described in (i) above shall,be a "Qualified Permanent Resident' or a 'Permitted Health Care Resident," as defined by California Civil Code Section 51.3(c)(2) and (6), respectively; (iii) Which qualifies as persons of very low income, as provided by California Health & Safety Code Section 50105, as those sections may be amended and/or substituted from time to time; and (iv) At the commencement of the occupancy of a Unit, the maximum allowable household income was equal to (or less than) fiftypercent (50 %) of the HUD Median Income, adjusted for household size. "Units" means the apartment dwelling units in the Project. "Proj ect" is the fifty four (54) unit multi - family senior residential rental apartment complex to be located at 150 West Las Tunas Drive, within the City, together with structures, improvements, equipment, fixtures, and other personal property owned by the Owner and located on or used in connection with all such improvements and all functionally related and subordinate facilities. "Related Agreements" means the Agreement, the Note, and the Trust Deed. 1.3 Rules of Construction 1.3.1 The singular form of any word used herein, including the terms defined herein shall include the plural and vice versa. The use herein of a word of any gender shall include correlative words of all genders. 1.3.2 Unless otherwise specified, references to Articles, Sections, and other subdivisions of this Regulatory Agreement are to the designated Articles, Sections, and other subdivisions of this Regulatory Agreement as originally executed. The words "hereof," "herein," "hereunder," and words of similar import shall refer to this Regulatory Agreement as a whole. 1.3.3 All of the terms and provisions hereof shall be construed to effectuate the purposes set forth in this Regulatory Agreement and to sustain the validity hereof. 1.3.4 Headings or titles of the several articles and sections hereof and the table of contents appended to copies hereof shall be solely for convenience of reference and shall not affect the meaning, construction, or effect of the provisions hereof. 1.3.5 This Regulatory Agreement and the Related Agreements shall beat all times interpreted, administered and enforced in compliance with California Civil Code Section 51.3, as the same may be from time to time amended or substituted. hi the event of any conflict between this RVPUB\&CV\641834 G -4 0 Regulatory Agreement or the Related Agreements and any provision of California Civil Code Section 51.3, the provisions of California Civil Code Section 51.3 shall govern and control over any inconsistent or conflicting term or provision, but only to the extent of such conflict or inconsistency. ARTICLE 2. ONGOING PROJECT OBLIGATIONS 2.1 Bindina for Term The provisions of this Regulatory Agreement shall apply to the Project throughout the entire term hereof, as established in Section 3.1 below. The parties agree that in the event of a default by Owner which is not remedied, if provisions for remedy are provided to Owner, the Agency shall be entitled to all relief to which it would be entitled by virtue of a default under any of the provisions hereof. 2.2 General Use Restrictions The Project will be used only for purposes consistent with this Regulatory Agreement and the Related Agreements, subject to the affordability and income restrictions set forth herein. 2.3 Residential Rental Property Owner represents, warrants, and covenants to operate the Project as residential rental property. The Project will be held and used for the purpose of providing senior residential housing, and Owner shall own, manage and operate, or cause the management and operation of, the Project to provide senior rental housing and for no otherpurposes. As used herein, facilities functionally related and subordinate to the Project include facilities for use' by the tenants thereof, including for example, swimming pools, other recreational facilities and meeting rooms, parking areas, and other facilities which are reasonably required for the Project (heating and cooling equipment, trash disposal equipment and the Unit for residential managers or maintenance personnel). Owner will not knowingly permit any of the Units to be used on a transient basis and will not rent any such Unit for a period of less than thirty (30) consecutive calendar days, and none of the Units will at any time be leased or rented for use as a hotel, motel, dormitory, fraternity house, sorority house, rooming house, hospital, nursing home, assisted living facility, skilled nursing facility, congregate care facility, adult day care facility, sanitary or rest home, or trailer court or park. 2.4 Oualified Household three (53) ofthe Units will be occupied or available for occupancy by Qualified Households at - Affordable Rents on a continuous basis. Qualified Households are those who qualify to occupy one (1) of the fifty three (53) Units pursuant to the provisions of this Regulatory Agreement .and the Related Agreements. Owner will advise the Agency on an annual or other periodic basis in writing of occupancy of Units by Qualified Households by delivery of a certificate in a form specified by such entity. For the purposes of this Regulatory Agreement, a Unit occupied by an individual who, at the commencement of the occupancy was a Qualified Household, is treated as occupied by a Qualified Household during their occupancy of such Unit until they cease to be qualified as a Qualified Household. Moreover, a Unit occupied by a Qualified Household shall be deemed, upon termination of such Qualified Household's occupancy (whether voluntarily or involuntarily), to be continuously occupied by a Qualified Household until reoccupied. Owner will also obtain and - maintain on file such Certifications of Tenant Eligibility in form similar to Exhibit B attached hereto and incorporated herein by reference, for each Qualified Household.as the Agency may, from time to time, require. Owner, shall make a good faith effort to verify that the income provided by an applicant in an income:certification is RVPUB\KCV\64I834 G -5 0 0 accurate by taking any one or more as necessary of the following steps as part of the verification process: (i) Obtain a pay stub for the most recent pay period; (ii) Obtain an income tax return for the most recent tax year; (iii) Obtain an income verification form from the applicant's current employer; (iv) Obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of those agencies; or (v) If the applicant is unemployed and has no tax return, obtain another form of independent verification. Owner will prepare and submit to the Agency, at such periodic frequency as they might require, a Certificate of Continuing Program Compliance in a form similar to Exhibit C hereto certifying: (i) all the Units were occupied by Qualified Households or held vacant and available for occupancy by Qualified Households during such period; and (ii) that to the knowledge of the Owner, no default has occurred under the provisions of this Regulatory Agreement or the Related Agreements. Owner will also prepare and submit to the Agency a report in form and substance satisfactory to the Agency, each year for the preceding calendar year, summarizing the vacancy rate of the Units and of the Proj ect on a month -to -month basis for such calendar year, in a form meeting the Agency's reporting obligations under California Health & Safety Code Section 33418. Owner will accept as tenants of the Project, on the same basis as all other prospective tenants, Qualified Households who are recipients of Federal, certificates and/or vouchers for rent subsidies pursuant to an existing program under Section 8 of the United States Housing Act of 1937 or its successor, and shall not apply selection criteria to Section 8 certificate holders that are more burdensome than the criteria applied to all other prospective tenants. The provisions of rental to Qualified Households set forth in this Article 2 shall apply during the entire term of this Regulatory Agreement. 2.5 Availability of Units During the term of this Regulatory Agreement, eleven (11) fifty three (53) of the Units shall be occupied or available for occupancy by Qualifying Households. 2.6 Rent Increases Rent for Qualifying Households may be increased only once per year by an amount equal to the maximum increase which would still maintain the rent as an Affordable Rent for the income category of the Qualifying Household occupying the Property. 2.7 Lease Provisions The form of lease or rental agreement used by the Owner for the lease or rental of Units shall be subject to review and approval by the Agency, the approval of which shall not be unreasonably withheld. The Owner shall include provisions in leases or rental RVPUBVCCV\641834 G -6 • a agreements for all Units which authorize the Owner to immediately terminate the tenancy of any Qualified Household occupying a Unit where one or more of such Qualified Households have misrepresented any fact material to the qualification of such an individual as a Qualified Household and/or for qualification for occupancy of a Unit. Each lease or rental agreement shall also provide that the tenants of such Unit shall be subject to annual certification or recertification of income and subject to rental increases in accordance with Section 2.6. Each lease or rental agreement shall also provide that the Owner will not discriminate on the basis of race, creed, color, sex, national origin, ancestry, religion, marital status, age, disability or receipt of public assistance or housing assistance in connection with a rental of a Unit, or in connection with the employment or application for employment of persons for operation and management of the Project, and all contracts, applications and leases entered into for such purposes shall contain similar nondiscriminatory clauses to such effect. 2.8 Tenant Income Certification On an annual basis and as required by Section 2.4 above, the Owner shall obtain, complete and maintain on file Certificates of Tenant Eligibility from each Qualified Household. Copies of such certificates shall be made available for review by the Agency, upon request and upon reasonable notice. 2.9 Security Deposits The Owner shall not require security deposits on Units in excess of one - month's rent for such Unit. Such deposits may be paid by the Qualifying Household in four (4) equal payments, commencing with the first rental payment and again with the next three (3) successive rental payments. 2.10 Additional Information: Books and Records Owner shall provide any additional information concerning the Units reasonably requested by the Agency. The Agency shall have the right to examine and make copies of all books, records or other documents maintained by Owner or by any of Owner's agents which pertain to any Unit. 2.11 Specific Enforcement of Affordability Restrictions The affordability restrictions contained in this Regulatory Agreement and the Related Agreements shall remain in full force and effect for a period of at least fifty five (55) years- from -the date the first final and permanent certificate of occupancy is issued for the Project. Owner hereby agrees that specific enforcement of Owner's agreement to comply with the affordable rent and occupancy restrictions of this Article 2 is one of the reasons for the financial contribution of the Agency to assist Owner to complete the Project and that, in the event of Owner's breach of such requirements, potential monetary damages to the Agency, as well as to prospective Qualified Households, would be difficult, if not impossible, to evaluate and quantify. Therefore, in addition to any other relief to which the Agency may be entitled as a consequence of the breach hereof, Owner agrees to the imposition of the remedy of specific performance against it in the case of any event of default by Owner in complying with the allowable rent, occupancy, restrictions or any other provision of this Article 2. 2.12. Indemnity Owner hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the Agency), the,Agency, the City and their board members, officers, and employees from and against any and all claims, losses, damages, liabilities, fines, penalties, charges,. administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and 'all costs and expenses incurred in connection RVPUB1KCV\641834 - " - therewith (including, but not limited to, attorneys' fees and expenses), arising directly or indirectly, in whole or in part, out of any activity carried on or undertaken on or off the Project. This Section 2.12 shall survive termination or expiration of this Regulatory Agreement. 2.13 No Limitation The Owner hereby acknowledges and agrees that the Owner's duties, obligations and liabilities under this Regulatory Agreement, including without limitation, under Section 2.12 above, are in no way limited or otherwise affected by any information the Agency may have concerning the Project, whether the Agency obtained such information from the Owner or from its own investigations. 2.14 Management Agent 2.14.1 Management Owner, and the management agent (if not the Owner), shall operate the Project in a manner that will provide decent, safe and sanitary residential facilities to the occupants thereof, and will comply with all the provisions of this Regulatory Agreement and the Related Agreements, and of any other applicable contract or agreement between the Agency, the City and the Owner. The Owner shall be the initial "Management Agent" of the Project. The Owner may retain, at no cost or expense to the Agency, on -site personnel and other consultants and service providers to assist Owner to operate the Project effectively and in compliance with the provisions of this Regulatory Agreement and the Related Agreements and state and federal law. Owner may not terminate its self - management of the Proj ect without the prior approval of the Agency, which maybe given or withheld in the Agency's sole and absolute discretion. If Agency determines in its reasonable judgment that the Project is not being operated or managed in accordance with all the requirements and standards of this Regulatory Agreement or the Related Agreements or other applicable laws and ordinances, then the Agency may deliver written notice to the Owner setting forth with reasonable detail the nature of the deficiencies. Within ten (10) business days following the Owner's receipt of such notice, the Agency and the Owner shall meet and confer in good faith concerning the nature of the Agency's alleged deficiencies and the actions which the Agency believes necessary to cure such deficiencies. Within thirty (30) business days from the conclusion of such discussions, the Owner shall cure such deficiencies and shall ensure that such deficiencies do not recur. If such deficiencies are not cured within said thirty (30) business day period, or if such deficiencies recur at a future date, the Agency may, at its option, require the Owner to replace the Management Agent with another Management Agent selected by the Owner in its reasonable discretion, provided, that the Owner shall ensure that such replacement Management Agent has the necessary skills, experience and financial ability to operate and manage the Project in accordance with all of the requirements and standards of this Regulatory Agreement, the Related Agreements and all other applicable laws and ordinances. Any contract for the operation or management of the Project entered into by the Owner shall provide that such contract shall be terminated upon thirty (3 0) business days' notice, with or without cause. The Owner's failure to remove and replace a Management Agent in accordance with the provisions of this Section 2.14 shall constitute an event of default under this Regulatory Agreement and the Related Agreements. RVPUB\RCV1641834 G -p A A 2.14.2 Performance Review Upon the request of the Agency, which request shall be in writing, the Owner shall cooperate with the Agency in the periodic, review of the management practices and financial status of the Units, but not more frequently than on a quarterly basis, and at least on an annual basis. The purpose of each periodic review will be to enable the Agency to'determine if the Units within the Project are being operated and managed in accordance with the requirements and standards of this Regulatory Agreement and the Related Agreements. Results of such review by the Agency shall be provided to Owner. 2.15 Insurance Requirements 2.15.1 Required Covera¢e The Owner shall maintain and keep in force, at the Owner's sole cost and expense, the following insurance applicable to the Project: 2.15.1.1 Comprehensive general liability insurance with limits not less than $1,000,000 for each occurrence, combined single limit for bodily injury and .property damage, including coverages for contractual liability, personal injury, broad form property damage, products and completed operations. 2.15.1.2 Comprehensive automobile liability insurance with limits not less than $1,000,000 for each occurrence, combined single limit for bodily injury and property damage, including coverages for owned, non -owned and hired vehicles, as applicable; provided, however, that if the Owner does not own or lease vehicles for purposes of this Regulatory Agreement, then no automobile insurance shall be required. 2.15.1.3 Property insurance covering the Project against all risks of loss for one hundred percent (100 %) of the replacement value, with deductible limits acceptable to the Agency, and with three (3) months rental. interruption coverage. 2.15.1.4 Worker's compensation insurance, fidelity bonds and/or such other insurance coverage which is ordinarily and customarily maintained on like kind and. sized apartment projects within the City. 2.15.2 General Requirements The insurance required by this Section 2.15 shall be provided under an occurrence form, and the Owner shall maintain such coverage continuously so long as this Regulatory Agreement is in force. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit shall be one and one -half times the occurrence limits specified above. 2.15.3 Additional Insured Both the City and the Agency shall be named and endorsed as an additional insured on both the general liability, automobile liability and extended coverage property insurance covering the Project. Comprehensive general liability, comprehensive automobile liability and property insurance policies shall also be endorsed to name as additional insureds the Agency, the City and their board members, officers, agents, and employees. All policies and bonds shall be endorsed to provide thirty (30) business days prior written notice of cancellation, RVPUB\KCV\641834 G -9 0 reduction in coverage, or intent not to renew to the address established for notices to each of the Agency pursuant to Section 5.2 below. 2.15.4 Insurance Endorsements Upon request at any time during the term of this Regulatory Agreement, the Owner shall provide endorsements to Owner's insurance policies, in form and with insurers reasonably acceptable to the Agency, evidencing compliance with the requirements of this Section. 2.15.5 Adiustment in Levels of Insurance Coverage If any other agreement concerning the Project requires insurance in amounts in excess of the amount set forth in this Section 2.15, the requirements of insurance coverage to be maintained on the Project hereunder shall be deemed satisfied by provision of such greater amounts of insurance, providing only that all such insurance policies comply with the provisions of Section 2.13.3 above. All coverage types and limits required by this Regulatory Agreement and the Related Agreements, shall be subject to modifications, additional requirements and reasonable increases by the Agency and City, as the need arises. The Owner shall not make any reductions in the scope of coverage that may affect the Agency's or City's protection, without the Agency's and City's prior written consent. ARTICLE 3. TERM AND RECORDATION 3.1 Term of Regulatory Agreement This Regulatory Agreement and the Related Agreements shall remain in full force and effect for a period of fifty five (55) years from the date the first final and permanent certificate of occupancy is issued for the Project, unless the Owner and the Agency agree, in writing, to sooner terminate this Regulatory Agreement or the Related Agreements. The parties intend that the provisions and effect of this Regulatory Agreement and the Related Agreements, and specifically of Article 2 hereof, shall remain in full force and effect for the entire term hereof. 3.2 Agreement to Record Owner agrees that this Regulatory Agreement and the Related Agreements may be recorded in the real properly records of Los Angeles County, California, and in such other places as the Agency may reasonably request. ARTICLE 4. DEFAULT, REMEDIES 4.1 An Event of Default Each of the following shall constitute an "Event of Default" by the Owner of this Regulatory Agreement and the Related Agreements: 4.1.1 Failure by the Owner to duly perform, comply with and observe any of the conditions, terms, or covenants of any agreement with the Agency concerning the Project, or of this Regulatory Agreement or the Related Agreements, if such failure remains uncured ten (10) business days after written notice of such failure from the Agency to the Owner in the manner provided herein or, with respect to a default that cannot be cured within ten (10) business days, if the Owner fails to commence such cure within such ten (10) business day period or thereafter fails to diligently and continuously proceed with such cure to completion. However, if a different period or notice requirement is specified under any other section of this Regulatory Agreement or the Related Agreements, then the specific provision shall control. RVPUBIKCV\641834 G -10 4.1.2 Any representation or warranty contained in this Regulatory Agreement or the Related Agreements or in any application, financial statement, certificate, or report submitted by Owner to the Agency proves to have been incorrect in any material respect when made. 4.1.3 A court having jurisdiction shall have made or rendered a decree or order (i) adjudging Owner to be bankrupt or insolvent; (ii) approving as properly filed a petition seeking reorganization of Owner or seeking any arrangement on behalf of the Owner under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or of any state or other jurisdiction; (iii) appointing a receiver, trustee, liquidator, or assignee of the Owner in bankruptcy or insolvency or for any of its properties; or (iv) directing the winding up or liquidation of the Owner, providing, however, that any such decree or order described in any of the foregoing subsections shall have continued unstayed or undischarged for a period of ninety (90) business days. - 4.1.4 The Owner shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment or execution on any substantial part of its property, unless the property so assigned, sequestered, attached, or executed upon shall have been returned or released within ninety (90) business days after such event (unless a lesser time period is for cure hereunder) or prior to sale pursuant to such sequestration, attachment, or execution. If the Owner is diligently working to obtain a return or release of the property and the Agency's interests hereunder are not imminently threatened in its reasonable business judgment, then the Agency shall not declare a default under this subsection. 4.1.5 The Owner shall have voluntarily suspended its business or dissolved. 4.1.6 The condemnation, seizure, or appropriation of all or, in the opinion of the Agency, a substantial part of the Project, except for condemnation initiated by the City or the Agency. 4.1.7 Should there occur any default declared by any .lender under any loan document or deed of trust relating to any loan made in connection with the Project, which loan is secured by a deed of trust or other instrument senior to this Regulatory Agreement. 4.2 Aeencv's Option to Lease To cause the Project to meet the requirements of this Regulatory Agreement, Owner hereby grants to the Agency an irrevocable option to lease from time to time up to all of the Units in the Project as necessary to achieve compliance with the provisions of Article 2 of this Regulatory Agreement. Any rental paid under any such sublease shall be paid to the Agency without obligation to pay any such rental to Owner or any other third party. 4.3 ` Maintenance, Repair, Alterations Owner shall maintain and preserve the Project in good condition and repair and in a prudent and businesslike manner. Except upon the prior written consent of the Agency, Owner shall not remove, demolish or substantially alter any of the improvements on the Project other than to make repairs of a nonstructural nature in the ordinary course of business which shall serve to preserve or increase the value of the Project. Owner shall complete promptly and in a good.and workmanlike manner any improvements which may now or hereinafter be constructed on the Project and promptly restore in like manner any improvement RVPUB\KCV\641834 G -11 0 9 which maybe damaged or destroyed thereon from any cause whatsoever and pay when due all claims for labor performed and material finished therefor. Owner shall comply with all laws, ordinances, rules, regulations, covenants, conditions, restrictions, and orders of any governmental authority now or hereafter affecting the conduct or operation of the Project and of Owner's business on the Project or any part thereof or requiring any alteration or improvement to be made thereon. Owner shall not commit, suffer, or permit any act to be done in, upon, or to the Project or any part thereof in violation of any such laws, ordinances; rules, regulations, or orders. Owner shall not commit or permit any waste or deterioration of the Project and shall keep and maintain abutting grounds, sidewalks, roads, parking, and landscaped areas in good and neat order and repair. Owner will not take, or fall to take, any action which if taken, or not so taken, would increase in anyway the risk of fire or other hazard occurring to or affecting the Project. Owner shall do any and all other acts which may be reasonably necessary to preserve or protect the value of the Project. Owner hereby agrees that Agency may conduct from time to time through representatives, upon reasonable notice, on -site inspections and observation of (i) the maintenance and repair of the Project, including a review of all maintenance and repair programs and practices and all reports and records pertaining thereto, including records of expenditures relating thereto; and (ii) such other facilities, practices, and records of Owner relating to the Units as the Agency reasonably deem to be necessary or appropriate in order to monitor Owner's compliance with the provisions of this Regulatory Agreement or the Related Agreements. 4.4 Liens. Owner shall pay and promptly discharge when due, at Owner's cost and expense, all liens, encumbrances and charges upon the Project, or any part thereof or interest therein, provided that the existence of any mechanic's, laborer's, materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation of this Section if payment is not yet due under the contract which is the foundation thereof and if such contract does not postpone payment for more than forty -five (45) business days after the performance thereof. Owner shall have the right to contest in good faith the validity of any such lien, encumbrance or charge, provided that within ten (10) business days after service of a stop notice or ninety (90) business days after recording of a mechanic's lien, Owner shall post and/or record a bond or other security reasonably satisfactory, but no more than the amount required to release the Iien under California law, and provided further that Owner shall thereafter diligently proceed to cause such lien, encumbrance or charge to be removed and discharged. If Owner shall fail either to remove and discharge any such lien, encumbrance or charge or to bond against or deposit security in accordance with the preceding sentence, if applicable, then, in addition to any other right or remedy of the Agency, they may, but shall not be obligated to, discharge the same, without inquiring into the validity of such lien, encumbrance or charge nor into the existence of any defense or offset thereto, either by paying the amount claimed to be due, or by procuring the discharge of such lien, encumbrance or charge by depositing in a court a bond or the amount or otherwise giving security for such claim, in such manner as is or may be prescribed by law. Owner shall, immediately upon demand therefor by the Agency pay to the Agency an amount equal to all costs and expenses incurred in connection with the exercise by the Agency of the foregoing right to discharge any such lien, encumbrance or charge. RVPUBVCCV\641834 G -12 • A 4.5 Assignment of Rents. Issues and Profits Owner hereby assigns and transfers absolutely to the Agency all of the rents from the Units and hereby gives to and confers upon the Agency the right, power and authority to collect such rents at such times and upon the occurrence of such events as provided herein. Owner irrevocably appoints the Agency, its true and lawful attomey -fact, at its option, at any time and from time to time, to demand, receive and enforce payment, to give receipts, releases and satisfactions, and to sue, in its name or in the name of Owner, for all such rents, and apply the same to the obligations secured hereby; provided, however, that Owner shall have the right to collect such rents (but no more than one (1) month in advance unless the written approval has first been obtained), and to retain and enjoy the same, so long as an Event of Default shall not have occurred hereunder or,_ if occurred, be cured,as provided hereunder. The assignment of rents 4n this Article 4 is intended to be an absolute assignment from Owner to the Agency and not merely the passing of a security interest. The foregoing power of attorney is coupled with an interest and cannot be revoked. 4.6 Collection Upon Default Upon the occurrence of an Event of Default hereunder, the Agency may at any time, with notice, either in person, by agent or by a receiver appointed by a court and without regard to the adequacy of its security, enter upon and take possession of the Project or any part thereof, and, with or without taking possession of the Proj ect or any part thereof, in its own name sue for or otherwise collect such rents, including those past due and unpaid, and all prepaid rents and all other monies which may have been or may hereafter be deposited with Owner by any lessee or,tenant of,Owner to secure the payment of any rent or for any services thereafter to be rendered by Owner or any other obligation of any tenant to Owner arising under any lease or rental agreement. Owner agrees that upon the occurrence of any Event of Default hereunder, Owner shall promptly deliver all such rents and other monies to the Agency, and the Agency may apply the same, less reasonable costs and expenses of operation and collection, including, without limitation, attorneys' fees, whether or not suit is brought or prosecuted to judgment, upon any indebtedness or obligation of Owner arising under this Regulatory Agreement or the Related Agreements, and in such order as it may determine, notwithstanding that said indebtedness or the performance of said obligation may not then be .due. .The collection of such rents, or the entering upon and taking possession of the Project, or the application thereof as aforesaid, shall not cure ormaive any default or notice of default hereunder or invalidate any act done in response to such default or pursuant to such notice of default or be deemed or construed to make the Agency a mortgagee -in- possession of the Project or any portion thereof. 4.7 Application of Funds After Default Except as otherwise herein provided, upon the occurrence and during the continuation of an Event of Default hereunder, the Agency may, at any time without notice, apply any or all sums or amounts received and held by the Agency to pay insurance premiums, impositions, or either of them and all other sums or amounts received by the, Agency from or on account of Owner, may be applied by the Agency toward payment of any indebtedness or obligation of the Owner arising under this Regulatory Agreement or the Related Agreements, in such manner and order as the Agency may elect, notwithstanding that said indebtedness or the performance of said obligation may not yet be due. The receipt, use or application of any such sum or amount shall not be construed to affect or cure any Owner Event of Default hereunder, or to cure or waive any default or notice of default hereunder, or to invalidate any act of the Agency. RVPUB\RCV\61I834 - G-13 0 0 4.8 Costs of Enforcement If any Event of Default occurs, the Agency may employ an attorney or attorneys to protect its rights hereunder. Owner promises to pay to the Agency, on demand, the fees and expenses of such attorneys and all other costs of enforcing the obligations secured hereby including without limitation, recording fees, receiver's fees and expenses, and all other expenses of whatever kind or nature, incurred by the Agency in connection with the enforcement of the obligations secured hereby, whether or not such enforcement includes the filing of a lawsuit. 4.9 Remedies Not Exclusive The Agency shall be entitled to enforce payment and performance of any indebtedness or obligation of Owner arising under this Regulatory Agreement or the Related Agreements and to exercise all rights and powers under this Regulatory Agreement or the Related Agreements or any law now or hereafter in force, notwithstanding some or all of the said indebtedness and obligations secured herebymay now or hereafter be otherwise secured, whetherby guaranty, mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither the acceptance of this Regulatory Agreement or the Related Agreements nor their enforcement by court action shall prejudice or in any manner affect the Agency's rights to realize upon or enforce any other security now or hereafter held by the Agency, it being agreed that the Agency shall be entitled to enforce this Regulatory Agreement or the Related Agreements and any other security now or hereafter held in such order and manner as it may in their absolute discretion determine. No remedy herein conferred upon or reserved to the Agency is intended to be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by this Regulatory Agreement or the Related Agreements to the Agency may be- exercised, concurrently or independently, from time to time and as often as may be deemed expedient by the Agency, and the Agency may pursue inconsistent remedies. 4.10 Specific Performance The Agency shall have the right to mandamus or other suit, action'or proceeding at law or in equity to require the Owner to perform their obligations and covenants under this Regulatory Agreement or the Related Agreements or to enjoin acts or things which may be unlawful or in violation of the provisions hereof. 4.11 Right to Cure at Owner's Expense The Agency shall have the right to cure any monetary default by Owner under a loan secured by an encumbrance on the Project; provided, however, that if the Owner is in good faith contesting a claim of default under a loan and the interests of the Agency are not imminently threatened by such default, in their sole judgment, then the Agency shall not have the right to cure such default. The Owner shall reimburse the Agency for any sums advanced by the Agency to cure a monetary default by the Owner upon demand therefor, together with interest thereon at the lesser of the rate of ten percent (10 %) per annum or the maximum rate permitted by law from the date of expenditure until the date of reimbursement. 4.12 Right of Contest The Owner shall have the right to contest in good faith any claim, demand, levy, or assessment, the assertion of which would constitute an Event of Default hereunder. Any such contest shall be prosecuted diligently and in a manner not prejudicial to the rights of the Agency hereunder. RVPUBUCCVN641834 G -14 0 4.13 Action at Law; No Remedy Exclusive The Agency may take whatever action at law or in equity as may be necessary or desirable to enforce performance and observance of any obligation, agreement or covenant of the Owner under this Regulatory Agreement or the Related Agreements. No remedy herein conferred upon or reserved by the.Agency is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Regulatory Agreement or the Related Agreements.or now or hereafter existing at law, in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of such right or power, but any such right or power may be exercised from time to time and as often as the Agency may deem expedient. In order to entitle the Agency to exercise any remedy reserved to it in this Regulatory Agreement or the Related Agreements, it shall not be necessary to give any notice, other, than such notice as may be herein expressly required or required by law to be given. ARTICLE 5. GENERAL PROVISIONS 5.1 Limitations on Recourse The Agency's obligation to pay any, monetary damages arising from the Agency's default under this Regulatory Agreement or the Related Agreements shall be strictly limited to monies available in the Agencys Housing Fund established pursuant to Health & 'Safety Code Section 33334.3. Under no set of circumstances shall the City's or the Agency's general fund or other accounts become liable for damages in the event of the breach of the Agency's obligations under this Regulatory Agreement or the Related Agreements.. All Agency's obligations under this Regulatory Agreement or the Related Agreements shall be funded only out of the Agency's.Housing Fund. 5.2 Notice All notices (other than telephone notices), certificates - or other communications (other than telephone communications) required or permitted hereunder shall be sufficiently given and should be deemed given when personally delivered or when sent by telegram, or when sent by facsimile transmission (if properly confirmed in writing), or seventy -two (72) hours following mailing by registered or certified mail, postage prepaid, or twenty-four hours following transmission of such notice by express mail, Federal Express or similar carriers, addressed as follows: If to the Agency: The Arcadia Redevelopment Agency 240 West Huntington Drive Post Office Box 60021 Arcadia, California 91006 -6021 Attention: Executive Director With a copy to (but not to be used for giving Notice): Best Best & Krieger LLP 3750 University Avenue Suite 400 RVPUB\KCV\641834 G -15 0 Riverside, California 92501 Attention: Agency Counsel for the Arcadia Redevelopment Agency If to the Owner: American Senior Living, Inc. 1740 East Garry Avenue Suite 105 Santa Ana, California 92705 Attention: Roger Davila With a copy to (but not to be used for giving Notice): Arter & Hadden LLP 5 Park Plaza Suite 1000 Irvine, California 92614 -8528 Attention: Bruce Holden 5.3 Relationship of Parties Nothing contained in this Regulatory Agreement shall be interpreted or understood by any of the parties, or by any third persons, as creating the relationship of employer and employee, principal and agent limited or general partnership, or joint venture between the Agency and the Owner or the Owner's agents, employees or contractors, and the Owner shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Regulatory Agreement for the operation of the Project. Except as otherwise provided in the Related Agreements, the Owner has and hereby retains the right to exercise full control of employment direction, compensation and discharge of all persons assisting in the performance of services hereunder. In regards to the on -site operation of the Project, the Owner shall be solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding and all other laws and regulations governing such matters. The Owner agrees to be solely responsible for its own acts and those of its agents and employees. 5.4 No Claims Nothing contained in this Regulatory Agreement shall create or justify any claim against the Agency by any person the Owner may have employed or with whom the Owner may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the operation of the Project. 5.5 Conflict of Interests No member, official or employee of the City or Agency shall make any decision relating to this Regulatory Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. 5.6 Non - Liability of City and Agency Officials. Employees and Agents No member, official, employee or agent of the City or the Agency shall be personally liable to the Owner, or any successor in interest, in the event of any default or breach by the Agency or for any amount which RVPU13\KM641834 G -16 • o may become due to the Owner or successor or on any obligation under the terms of this Regulatory Agreement. 5.7 Enforced Delay In addition to specific provisions of this Regulatory Agreement, performance by any party to this Regulatory Agreement shall not be deemed to be in default where delays or defaults are due to war; terrorism; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; government restrictions or priorities; litigation; unusually severe weather; inability to secure unnecessary labor, materials or tools; delays of any contractor or supplier; acts of the other parties; acts or failure to act of the Agency or any other public or governmental agency or entity (except that any act or failure to act of the Agency shall not excuse performance by the Agency and except where such act or failure to act is required or allowed by law); or any other causes beyond the reasonable control or without the default of the party claiming an extension of time to perform. Any extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other parties hereunder more than thirty (3 0) business days after the commencement of the cause, the period shall commence to run only thirty (30) business days prior to the giving of such notice.. 5.8 Title of Parts and Sections Any titles of the parts, sections or subsections of this Regulatory Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any part of its provision. 5.9 Hold Harmless Except as such claims may arise from gross negligence or willful misconduct by the Agency, if any person or entity performing work for the Owner on the Project shall assert any claim against the Agency on account of any damage alleged to have been caused by reason of the negligent or willful acts of the Owner, the Owner shall defend at its own expense any suit based upon such claim; and if any judgment or claims against the Agency shall be allowed, the Owner shall pay or satisfy such judgment or claim and pay all costs and expenses in connection therewith. Nothing herein stated shall be interpreted as a prohibition against the Owner seeking indemnification (either contractually or as a matter of law) from any third person or entity other than the City or the Agency. In addition, the Owner shall defend the City and the Agency (with counsel reasonably satisfactory to the Agency) against any claims or litigation of any nature whatsoever brought by third parties and directly or indirectly arising from the Owner's performance of its obligations under this Regulatory Agreement or the Related Agreements, and in the event of settlement, compromise or judgment hold the City and the Agency free and harmless therefrom. 5.10 Rights and Remedies Cumulative Except as otherwise expressly stated in this Regulatory Agreement, the rights and remedies of the parties are cumulative, and the exercise or failure to exercise one or more of such rights or remedies by either party shall not preclude the exercise by it, at the same time or different times, of any right or remedy for the same default or any other default by the other party. No waiver of any default or breach by the Owner hereunder shall be implied from any omission by the Agency to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified RVPUB\KCV\641834 G -17 0 0 in the waiver, and such wavier shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by the Agency to or of any act by the Owner requiring further consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar act. The exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of any default under this Regulatory Agreement, nor shall it invalidate any act done pursuant to notice of default, or prejudice the Agency in the exercise of any right, power, or remedy hereunder or under any agreements ancillary or related hereto. 5.11 Applicable Law; Venue This Regulatory Agreement and the Related Agreements shall be interpreted under and pursuant to the laws of the State of California, without regard to its conflicts of laws principles. Any action or proceeding pertaining to the interpretation or enforcement of this Regulatory Agreement or the Related Agreements, or which in any way arise from the existence of this Regulatory Agreement or the Related Agreements, shall be instituted and prosecuted in the appropriate court in the County of Los Angeles, California. Owner hereby irrevocably waives, to the maximum legal extent, any statutory or common law rights which it may have to a change of venue to any other court or jurisdiction (including Federal District Court) for any reason whatsoever, including, without limitation, due to the fact that the Agency or the City is or may be a party to this Regulatory Agreement, or due to the fact that questions involving Federal laws or rights may be involved. Without limiting the generality of the foregoing, the Owner hereby irrevocably waives, to the maximum legal extent, any rights which it may have arising under California Code of Civil Procedure Section 394. 5.12 Severabilitv If any term, provision, covenant or condition of this Regulatory Agreement or the Related Agreements is held in a final disposition by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. 5.13 Attorneys' Fees In the event any legal action is commenced to interpret or to enforce the terms of this Regulatory Agreement or the Related Agreements or to collect damages as a result of any breach thereof, the party prevailing in any such action shall be entitled to recover against the party not prevailing all reasonable attorneys' fees and costs incurred in such action (including all legal fees incurred in any appeal or in any action to enforce any resulting judgment). 5.14 Binding Upon Successors This Regulatory Agreement or the Related Agreements shall be binding upon and inure to the benefit of the permitted heirs, administrators, executors, successors in interest and assigns of each of the parties, except that there shall be no transfer of the Project by the Owner without the prior written consent of the Agency. Any reference in this Regulatory Agreement to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired an interest in compliance with the terms hereof or under law. RVPUMKCV%41834 G -18 • O 5.15 Time of the Essence In all matters under this Regulatory Agreement or the Related Agreements, time is of the essence. 5.16 , Approval by Agency 5.16.1 Any approvals required under this Regulatory Agreement shall not be unreasonably withheld_ or made, except where it is specifically provided that another standard applies, -in which case the specified standard shall apply. 5.16.2 Except as otherwise provided in this Regulatory Agreement, whenever this Regulatory Agreement calls for approval by the Agency of a proposed document to be submitted by the Owner, the Agency shall notify the Owner of approval or disapproval within twenty (20) business days after receipt of the proposed document, and failure to respond within said twenty (20) business day period shall be deemed an approval. The Agency may not disapprove a proposed document without giving specific reasons for its disapproval. 5.17 Complete Understanding of the Parties This Regulatory Agreement may be executed in multiple originals, each of which shall be deemed to be an original. This Regulatory Agreement and the attached Exhibits constitute the entire understanding and agreement of the parties with respect to the matters herein discussed, except as otherwise expressly set forth herein. 5.18 Burden and Benefit The Agency and the Owner to hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concerning the Project, and that Owner's legal interest in the Project is rendered less valuable thereby. The Agency and Owner hereby declare their understanding and intent that the covenants, reservations, and restrictions set forth herein directly benefit the land (i) by enhancing and increasing the enjoyment and use of the Project by Qualified Households, (ii) by making possible the obtaining of advantageous financing for the Project and (iii) by furthering the public purposes advanced by the City and the Agency, [Signatures on Following Pages] RVPUIMM641834 G-19 0 0 ATTEST: 0 Agency Secretary APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP I5N Agency Counsel "AGENCY" THE ARCADIA REDEVELOPMENT AGENCY a public body, corporate and politic Un William Kelly Executive Director RVPLTBXKCW41934 G -20 "OWNER" AMERICAN SENIOR LIVING, INC. a California corporation Lo Roger Davila Vice - President ARCADIA HERITAGE PARK, LP a California limited partnership By: ASL ARCADIA, INC. a California corporation Its: Development General Partner 0 Roger Davila Vice - President By: HERITAGE COMMUNITY HOUSING, INC. a California non -profit corporation UA John Bigley Executive Vice - President RVPUB\KCVK41834 G -21 (b) the net income from the operation of a business or profession or from the rental of real or personal property (without deducting expenditures for business expansion or amortization of capital indebtedness or any allowance for depreciation of capital assets); (c) interest and dividends (including income from assets excluded below); (d) the full amount of periodic payments received from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of period receipts, including any lump sum payment for the delayed start of a periodic payment; (e) payments in lieu of earnings, such as unemployment and disability compensation, workmen's compensation and severance pay; (f) the maximum amount of public assistance available to the above persons other than the amount of any assistance specifically designated for shelter and utilities; (g) periodic and determinable allowances, such as alimony and child support payments and regular contributions and gifts received from persons not residing in the dwelling; (h) all regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is the head of the household or spouse; and (i) any earned income tax credit to the extent that it exceeds income tax liability. Excluded from such anticipated income are: (a) casual, sporadic or irregular gifts; (b) amounts which are specifically for or in reimbursement of medical expenses; (c) lump sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and workmen's compensation), capital gains and settlement for personal or property losses; (d) amounts of educational scholarship paid directly to the student of the educational institution, and amounts paid by the government to a veteran for use in meeting the costs of tuition, fees, book and equipment. Any amounts of such scholarships, or payments to veterans not used for the above purposes, are to be included in income; (e) special pay to a household member who is away from home and exposed to hostile fire; (f) relocation payments under Title 11 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; (g) foster child care payments; (h) the value of coupon allotments for the purchase of food pursuant to the Food Stamp Act of 1977; (i) payments to volunteers under the Domestic Volunteer Service Act of 1973; payments received under the Alaska Native Claims Settlement Act. RVPUBXCV\641834 G -24 • a (k) income derived from certain submarginal land of the United States that is held in trust for certain Indian tribes; (1) payments or allowances made under the Department of Health and Human Services' Low - Income Home Energy Assistance Program; (m)' payments received from the Job Training Partnership Act; and (n) the first $2,000 of per capita shares received from judgment funds awarded by the Indian Claims Commission or the Court of Claims. Do the persons whose income or contributions are included in item 6 above: (a) have savings, stocks, bonds, equity in real property or other form of capital investment (excluding the values of necessary items of personal property such as furniture and automobiles and interests in Indian trust land)? _ Yes _ No; or . (b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale) during the last two years at less than fair market value? Yes No (c) If the answer to (a) or (b) above is yes, does the combined total value of all such assets owned or disposed of by all such persons total more than $5,000? ,Yes _No (d) If the answer to (c) is yes, state: G) the amount of income expected to be derived from such assets in the 12 -month period beginning on the date of initial occupancy in the unit that you propose to rent: $ ; and (ii) . the amount of such income, if any, that was included in item 6 above: $ 8. (a) Are all of the individuals who propose to reside in the unit full -time students *? Yes _No *A full -rime student is an individual enrolled as a full -time student during each of five calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance and is not an individual pursuing a full -time course of institutional or farm training under the supervision of an accredited agent of such an educational organization or of a state or political subdivision thereof. (b) If the answer to 8(a) is yes, is at least one of the proposed occupants of the unit a husband and wife entitled to file a joint federal income tax return? _Yes _No 9. Neither myself nor any other occupant of the unit Uwe propose to rent is the owner of the rental housing project in which the unit is located (hereinafter the "Owner "), has any family relationship to the Owner or owns, directly or indirectly, any interest in the ownership. For purposes of this section, indirect ownership by an individual shall mean ownership by a family member, ownership by a corporation, partnership, estate or trust in proportion to the ownership or beneficial interest in such corporation, partnership, estate or trust held by the individual or a family member, and ownership, direct or indirect, by a partner of the individual. Rveuauccv\saisu G -25 a . 0 10. This certificate is made with the knowledge that it will be relied upon by the Owner to determine maximum income for eligibility to occupy the unit; and I/we declare that all information set forth herein is true, correct and complete and, based upon information Uwe deem reliable and that the statement of total anticipated income contained in Section 6 is reasonable and based upon such investigation as the undersigned deemed necessary. 11. I/we will assist the Owner in obtaining any information or documents required to verify the statements made herein, including either an income verification from my /our present employer(s) or copies of federal tax returns for the immediately preceding calendar year. 12. I/we acknowledge that Uwe have been advised that the making of any misrepresentation or misstatement in this declaration will constitute a material breach of my /our agreement with the Owner to lease the units and will entitle the Owner to prevent or terminate my /our occupancy of the unit by institution of an action for eviction or other appropriate proceedings. 13. Housing Issuer Statistical Information (Optional - -will be used for reporting purposes only): Marital Status: Race (Head of Household) White Asian African- American Physical Disability: Yes _ Hispanic _ Native American No Other I/we declare under penalty of perjury that the foregoing is true and correct. Executed this day of 20_ in the County of Los Angeles, California. Applicant Applicant [Signature of all persons over the age of 18 years listed in number 2 above required.] RVPUB\KCV\641834 G -26 C FOR COMPLETION BY APARTMENT OWNER ONLY: I. Calculation of eligible income: (a) Enter amount entered for entire household in 6 above: $ (b)(1) If answer to 7(c) above is yes, enter the total amount entered in 7(d)(1), subtract from that figure the amount entered in 7(d)(2) and enter the remaining balance ($ ) ; (2) Multiply the amount entered in 7(c) times the current passbook savings rate to determine what the total annual earnings on the amount in 7(c) would be if invested in passbook savings ($ ), subtract from that figure the amount entered in 7(d)(2) and enter the remaining balance (3) Enter at right the greater of the amount calculated under (1) or (2) above: (c) TOTAL ELIGIBLE INCOME (Line 1(a) plus line 1.(b)(3): $_ 2. The amount entered in 1(c): Qualifies the applicant(s) as a Lower- Income Tenant(s). Does not qualify the applicant(s) as Lower - Income Tenant(s). 3. Number of apartment unit assigned: Bedroom Size: Rent: $ 4. This apartment unit [was/was not] last occupied for a period of 31 consecutive days by persons whose aggregate anticipated annual income, as certified in the above manner upon their initial occupancy of the apartment unit, qualified them as Lower - Income Tenants. Method used to verify applicant(s) income: Employer income verification. Copies of tax returns. Other Manager RVPU9\R.CV1641e34 G -27 INCOME VERIFICATION (for employed persons) The undersigned employee has applied for a rental unit located in project financed in part by a loan from the Arcadia Redevelopment Agency for persons of very low income. Every income statement of a prospective tenant must be stringently verified. Please indicate below the employee's current annual income from wages, overtime, bonuses, commissions or any other form of compensation received on a regular basis. Annual wages Overtime Bonuses Commissions Total current income I hereby certify that the statements above are true and complete to the best of my knowledge. Signature Date Title I hereby grant you permission to disclose my income to in order that they may determine my income eligibility for rental of an apartment at [ Signature Please send to: Date RVPUBIKCV\641834 G-28 INCOME VERIFICATION (for self - employed persons) I hereby attach copies of my individual federal and state income tax returns for the immediately preceding calendar year and certify that the information shown in such income tax returns is true and complete to the best of my knowledge. Signature Date RVPUB\KCV%641834 G -29 EXHIBIT C TO HERITAGE PARK REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE' FOR THE [MONTHIQUARTER] ENDING The undersigned, , as the authorized representative of American Senior Living, Inc. ( "Developer "), which is a [ * ** * * *] corporation, has read and is thoroughly familiar with the provisions of the various documents associated with financial assistance provided to the Developer by the Arcadia Redevelopment Agency ( "Agency "), such documents including the Regulatory Agreement, dated as of ( * ** * * *], 20023 between the Developer and the Agency. As of the date of this Certificate, the following percentages of completed residential units in the Project (i) are occupied by Qualified Households (as such term is defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for such occupancy and have been so held continuously since the date a Qualified Household vacated such unit, as indicated: Occupied by Low or Moderate Income Tenants: Held vacant for occupancy continuously since last occupied by Low or Moderate Income Tenant: Vacant Units: [Qualified Households] who commenced occupancy of units during the preceding [month/quarter]: Percent Unit Nos. Percent Units Nos. This form may be amended from time to time by the Arcadia Redevelopment Agency. RVPUMKCV\641934 G -30 Attached is a separate sheet (the "Occupancy Summary ") listing, among other items, the following information for each apartment unit in the Project: the number of each apartment unit, the occupants of each unit, the rental paid for each unit and the size and number of bedrooms of each unit. It also indicates which units are occupied by Qualified Households and which units became Units during the preceding [month/quarter]. The information contained thereon is true and accurate. The undersigned hereby certifies that (1) a review of the activities of the Developer during such [ month/quarter] and of the Developer's performance under the Regulatory Agreement has been made under the supervision of the undersigned; and (2) to the best of the knowledge, of the undersigned, based on the review described in clause (1) hereof, the Developer is not in default under any of the terms and provisions of the above documents [or describe the nature of any default in detail and set forth the measures being taken to remedy such default]. AMERICAN SENIOR LIVING, INC. L-B RVPU9NCCVN641834 G -31 STATE OF CALIFORNIA COUNTY OF LOS ANGELES Officer(s) Partner(s) Attorney -in -Fact Trustee(s) Subscribing Witness On , 2003, before me, the undersigned notary public, - GuardiawConsmator personally appeared _ personally known tom - Other - SIGNER IS REPRESENTING: OR - proved to me on the basis of satisfactory evidence to be thc NAME OF PERSON(S) OR ENITIY(tES) persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public RVPUBtKCVN641834 G -32 �f��i'c9f 2/S7 �� Oi�0 ) /doo3 f�laruCP�kJ -1-� , Date: December 17, 2002 TO: Mayor and City Council ` FROM: Stephen P. Deitsch, City Attorney V Prepared by: Lisa Mussenden, Legal Coordinator SUBJECT: Ordinance No. 2157 adding Division 8 to Part 2, Chapter 1, Article IV of the Arcadia Municipal Code regarding Vicious and Dangerous Dogs Recommendation: Introduce Recently, a vicious and dangerous dog has been involved in at least one serious incident in the City of Arcadia. In general, vicious and potentially dangerous dogs have become a serious threat to the safety and welfare of citizens. Attacks by vicious and dangerous dogs are often attributable to the failure of owners and keepers of dogs to register, confine and properly control these dogs. Thus, there is a necessity for regulation and control of these vicious and potentially dangerous dogs. The proposed ordinance is designed to give authority to the Poundmaster (Pasadena Humane Society) to summarily and immediately impound a dog at large where there is probable cause to believe that a dog has attacked, assaulted, bitten or injured any human being or other animal, or the dog poses an immediate threat to the public safety. This ordinance also allows the Poundmaster to enter and inspect private property to enforce the provisions of this ordinance upon proper written notice to the owner or keeper of the dog. Finally, the proposed ordinance provides for an expeditious hearing, with appropriate procedures and due process, to determine whether a dog is vicious and dangerous. Thereafter, pursuant to the proposed ordinance, a hearing officer may impose reasonable orders and remedies to deal with any dog determined to be vicious and dangerous, ranging from confinement and training to destroying the LASER IMAGED \10 e - 30P Passed, approved and adopted this ATTEST: City Clerk APPROVED AS TO FARM: City Attorney EOA ,11 2- -17- day of 2003. Mayor of the City, of Arcadia .. I . 0 • dog, if necessary. There are also criminal penalties and other remedies applicable to dog owners for violation of the ordinance. FISCAL IMPACT None RECOMMENDATION That the City Council introduce Ordinance No. 2157 adding Division 8 to Part 2, Chapter 1, Article IV of the Arcadia Municipal Code regarding Vicious and Dangerous Dogs. APPROVED: William R. Kelly City Manager Attachment — Ordinance No. 2157 •pr(bq a p63 UKJJ a 1 ,5 7 ORDINANCE NO. 2157 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA ADDING DIVISION 8 TO PART 2, CHAPTER 1, ARTICLE IV OF THE ARCADIA MUNICIPAL CODE REGARDING VICIOUS AND DANGEROUS DOGS WHEREAS, the City of Arcadia ( "City") is authorized pursuant to Article 7, Section 11 of the California Constitution to "make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws," including the regulation of animals; and WHEREAS, the City is authorized pursuant to California Food and Agriculture Code Sections 31621 and 31683 to adopt and administer an administrative procedure for the regulation and prohibition of potentially dangerous and vicious dogs; and WHEREAS, the City is further authorized by California Government Code Section 36901 to impose fines, penalties, and forfeitures for violations of the City's ordinances; and WHEREAS, the City Council of the City of Arcadia hereby finds and declares all of the following: (a) Potentially dangerous and vicious dogs have become a serious threat to the safety and welfare of citizens. In recent years, such dogs are known to have assaulted without provocation and to have seriously injured individuals, including -1- LASER IMAGED M. children, and have killed other dogs. Many of these attacks have occurred in public places. At least one such attack occurred recently in the City of Arcadia. (b) The number and severity of these attacks are attributable to the failure of owners and keepers of dogs to register, confine, and properly control vicious and potentially dangerous dogs. (c) The necessity for the regulation and control of vicious and potentially dangerous dogs is a serious problem, requiring action by the City, and existing laws are inadequate to deal with the threat to public health and safety posed by vicious and potentially dangerous dogs. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Division 8 is hereby added to Article IV, Chapter 1, Part 2 of the Arcadia Municipal Code to read as follows: "DIVISION 8 VICIOUS AND DANGEROUS DOGS 4128. DEFINITIONS. Whenever in this Division the following terms are used, they shall have the meaning ascribed to them in the following subsections, unless it is apparent from the context thereof that some other meaning is intended. -2- 4128.1. VICIOUS AND DANGEROUS DOG. Vicious and dangerous dog shall mean: (a) Any dog that when unprovoked inflicts injury, bites, attacks, or kills a human being or domestic animal; or (b) Any dog that in a vicious or terrorizing manner, approaches any person in apparent attitude of attack upon the streets, sidewalks, or any public grounds or places; or (c) Any dog with a known propensity, tendency or disposition to attack unprovoked, to cause injury or to otherwise endanger the safety of human beings or domestic animals; or (d) Any dog which engages in, or is found to have been trained to engage in, exhibitions of dog fighting; or (e) Any dog at large found to attack, menace, chase, display threatening or aggressive behavior or otherwise threaten or endanger the safety of any domestic animal or person upon the streets, sidewalks, or any public grounds or places; or (f) Any dog seized under Section 599aa of the Penal Code and upon the sustaining of a conviction of the owner or keeper under subdivision (a) of Section 597.5 of the Penal Code. -3- 4128.2. ENCLOSURE. Enclosure means a fence or structure suitable to prevent the entry of young children, which is suitable to confine a dangerous and vicious dog with adequate exercise area, and posted with an appropriate warning sign, in conjunction with other measures which may be taken by the owner or keeper of the dog. The enclosure shall be designed in order to prevent the animal from escaping. The animal shall be housed pursuant to Section 597t of the Penal Code. 4128.3. IMPOUNDED. Impounded means taken into the custody of the City pound. 4128.4. HEARING OFFICER. Hearing officer means any person or entity designated by the City Manager of the City to administer and conduct hearings pursuant to this Division. 4128.5. CITY POUNDMASTER. City Poundmaster or Poundmaster means the City of Arcadia or whatever entity performs any of the animal control functions for the City of Arcadia. 4128.6. CHIEF OF POLICE. Chief of Police means the Chief of the Arcadia Police Department, or designee. 4128.7. CITY. City means the City of Arcadia. 0 • 4128.8. COUNTY. County means Los Angeles County. 4129. NONAPPLICATION OF DIVISION. (a) This Division does not apply to: E (1) Licensed kennels, humane society shelters, animal control facilities, or veterinarians; or (2) Dogs while utilized by any police department or any law enforcement officer in the performance of police work. (b) In addition, no dog may be declared vicious,and dangerous if: (1) Any injury or damage is sustained by a person who, at the time the injury or damage was sustained, was committing a willful trespass with the intent to commit a crime or other tort (other than a mere trespass) upon premises occupied by the owner or keeper of the dog, or was teasing, tormenting, abusing, or assaulting the dog, or was committing or attempting to commit a crime; or (2) The dog was protecting or defending a person within the immediate vicinity of the dog from an unjustified attack or assault; or (3) An injury or damage was sustained by a domestic animal which at the time the injury or damage was sustained was teasing, tormenting, abusing, or assaulting the dog; or Ws 0 • (4) The injury or damage to a domestic animal was sustained while the dog was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner or keeper, and the damage or injury was to a species or type of domestic animal appropriate to the work of the dog. 4130. SEIZURE AND IMPOUNDMENT OF VICIOUS AND DANGEROUS DOGS. (a) The Poundmaster shall have the power to summarily and immediately seize and impound a dog at large where there is probable cause to believe that a'dog has attacked, assaulted, bitten or injured any human being or other animal, or the dog poses an immediate threat to public safety. The Poundmaster may enter and inspect private property to enforce the provisions of this Division. (b) The owner or keeper of the dog shall be entitled to a hearing upon the seizure pursuant to this Division. Within forty eight (48) hours of the seizure, the Poundmaster shall provide written notice to the owner or keeper of the dog stating the reason(s) for the seizure and informing the owner or keeper of his or her right to a hearing. This notice must also include the date, time, and location of the hearing. The Hearing Officer shall, within ten (10) working days following the seizure and impoundment or such later date allowed or required pursuant to Section 4131, conduct a hearing for a determination of the dog as vicious and dangerous. M 0 0 (c) The owner or keeper of the dog shall be liable to the Poundmaster for the costs and expenses of keeping the dog, if the dog is later adjudicated vicious and dangerous. (d) Failure to surrender to the Poundmaster upon demand a dog which is subject to being impounded pursuant to this Division, is a misdemeanor. (e) In lieu of impound, the Poundmaster may permit the dog to be confined at the owner's or keeper's expense in an approved kennel or veterinary facility within the City or at the owner's or keeper's residence provided that the owner or keeper: (1) Shall not remove the dog from the kennel, veterinary facility or residence without the prior written approval of the Poundmaster; and (2) Shall upon demand make the dog available for observation and inspection by the Poundmaster or its authorized representatives. 4131. HEARING ON DECLARATION OF DOG AS VICIOUS AND DANGEROUS. (a) Hearing. The Hearing Officer shall conduct a hearing to determine whether or not a dog confined or impounded is a vicious and dangerous animal. Whenever possible, any complaint received from a member of the public which serves as the evidentiary basis for the Poundmaster to find probable cause shall be sworn to and verified by the complainant. The Hearing Officer shall notify the owner or keeper of -7- 0 • the dog that a hearing will be held by the Hearing Officer at which time he or she may present evidence as to why the dog should not be declared vicious and dangerous. The owner or keeper of the dog shall be served with notice of the hearing and copies of any complaints received, either personally or by first -class mail with return receipt requested. The hearing shall be held no fewer than five working days after service of notice upon the owner or keeper of the dog. For purposes of this Division, service shall be deemed complete upon personal service on the owner or keeper or, if service is effectuated by mail, the service shall be deemed complete five (5) days after deposit in the mail if the owner or keeper's address is within the State of California, ten (10) days if the owner or keeper's address is outside the State of California but within the United States, and twenty (20) days if the owner or keeper's address is outside the United States. The hearing shall be open to the public. The Hearing Officer may admit into evidence all relevant evidence, including incident reports and the affidavits of witnesses, limit the scope of discovery, subpoena witnesses and documents and shorten the time to produce records or witnesses. The Hearing Officer may find, upon a preponderance of the evidence, that the dog is vicious and dangerous and make orders reasonable and appropriate to mitigate or eliminate the threat posted by the vicious and dangerous dog, and such other orders as may be authorized by or consistent with this Division. In C� (b) Determination of Vicious and Dangerous Dog. In making a determination that a dog is or is not vicious and dangerous, evidence of the following shall be considered: (1) Any previous history of the dog attacking, assaulting, biting, or causing injury to a human being or other animal; (2) The nature and extent of injuries inflicted and the number of victims involved; (3) The place where the attack, assault, bite or injury occurred; (4) The presence or absence of any provocation for the attack, assault, bite or injury; (5) The extent to which property has been damaged or destroyed; (6) Whether the dog exhibits characteristics of being trained for fighting or attack or other evidence to show such training or fighting; (7) Whether the dog exhibits characteristics of aggressive or unpredictable temperament or behavior in the presence of human beings or dogs or other animals; (8) Whether the dog can be effectively trained or retrained to change its temperament or behavior; (9) The manner in which the dog had been maintained by its owner or keeper; (10) Any other relevant evidence concerning the maintenance of the dog; In r 0 (11) Any other relevant evidence regarding the ability of the owner or keeper, or the Poundmaster, to protect the public safety in the future if the dog is permitted to remain in the City. (c) The Hearing Officer may decide all issues for or against the owner or keeper of the dog even if the owner or keeper fails to appear at the hearing. 4132. DISPOSITION OF VICIOUS AND DANGEROUS ANIMAL. (a) Within fifteen (15) days following the hearing, the Hearing Officer shall issue his or her decision and notify the owner or keeper of the dog in writing of the determination and orders issued, either personally or by first -class mail postage prepaid. (b) If a determination is made that the dog is vicious and dangerous, the owner or keeper shall comply with any and all orders of the Hearing Officer in accordance with a time schedule established by the Hearing Officer, but in no case more than thirty (30) days after the date of the determination or thirty five (35) days if notice of the determination is mailed to the owner or keeper of the dog. The requirements may include, but are not limited to, the following: (1) All vicious and dangerous dogs must be properly licensed and vaccinated. The Poundmaster shall include the vicious and dangerous dog designation in the registration records of the dog, either after the owner or keeper of the dog has agreed to the designation or the court or Hearing Officer has determined the designation 111E applies to the dog. The Poundmaster may charge a vicious and dangerous dog designation fee to be established and amended by the City Council by resolution, in addition to the regular licensing fee to provide for the increased costs of maintaining the records of the dog. (2) A vicious and dangerous dog, while on the owner's or keeper's property, shall, at all times, be kept indoors, or in a securely fenced yard from which the dog cannot escape, and into which children cannot trespass. A vicious and dangerous animal may be off the owner's or keeper's premises only if it is restrained by a substantial leash, of appropriate length, and if it is under the control of a responsible adult. (3) If the dog in question dies, or is sold, transferred, or permanently removed from the City, the owner or keeper of a vicious and dangerous dog shall notify the Poundmaster of the changed condition and new location of the dog in writing within five (5) working days. (c) If the owner or keeper of the dog contests the determination, he or she may, within five (5) days of the receipt of the notice of determination, appeal the decision of the Hearing Officer to the Superior Court of the County. The contesting owner or keeper of the dog shall serve personally or by first -class mail, postage prepaid, notice of the appeal upon the other party. -11- (d) The court hearing the appeal shall conduct a hearing de novo, without a jury, and make its own determination as to the viciousness and danger of the dog and make other orders authorized by this Division, based upon the evidence presented. The hearing shall be conducted in the same manner and within the time periods set forth in this Division. The court may admit all relevant evidence, including incident reports and the affidavits of witnesses, limit the scope of discovery, subpoena witnesses and documents and may shorten the time to produce records or witnesses. The issue shall be decided upon the preponderance of the evidence. If the court rules the dog to be vicious and dangerous, the court may establish a time schedule to ensure compliance with this Division, but in no case more than thirty (30) days subsequent to the date of the court's determination or thirty five (3 5) days if the service of the judgment is by first -class mail. (e) The determination of the Hearing Officer or, if contested pursuant to this Division, the court hearing the appeal, shall be final and conclusive upon all parties. 4133. REMOVAL FROM LIST OF VICIOUS AND DANGEROUS DOGS. If there are no additional instances of the behavior described in Section 4128.1within a thirty six (36) month period from the date of designation as a vicious and dangerous dog, the dog shall be removed from the list of vicious and dangerous dogs. The dog may, but is not required to be, removed from the list of vicious and dangerous dogs prior to the expiration of the thirty six (36) month period if the owner or keeper of the -12- • dog demonstrates to the Poundmaster that changes in circumstances or measures taken by the owner or keeper, such as training of the dog, have mitigated the risk to the public safety. 4134. DESTRUCTION; NONDESTRUCTION; CONDITIONS; ENCLOSURES. (a) A dog determined to be a vicious and dangerous dog may be destroyed by the Poundmaster when it is found, after proceedings conducted under Section 4131, that the release of the dog would create a significant threat to the public health, safety, and welfare. (b) If it is determined that a dog found to be vicious and dangerous shall not be destroyed,.the Hearing Officer or, if appealed, the court, shall impose conditions upon the ownership and keeping of the dog that protect the public health, safety, and welfare. 4135. PROHIBITION OF OWNING, POSSESSING, CONTROLLING OR HAVING CUSTODY. The owner or keeper of a dog determined to be a vicious and dangerous dog may be prohibited by the Hearing Officer, or if contested, the court, from owning, possessing, controlling, or having custody of any dog for a period of up to three (3) years, when it is found, after proceedings conducted under Section 4131, that ownership or -13- 0 0 possession of a dog by that person would create a significant threat to the public health, safety, and welfare, 4136. PENALTY; FINES. The failure of an owner or keeper to comply with an order issued by the Hearing Officer is hereby declared a public nuisance. Such public nuisance may be punished as a misdemeanor with a fine not to exceed one thousand dollars ($1,000), remedied by way of a civil action prosecuted by the City Attorney, or abated by the Poundmaster pursuant to section 4137 of this Division. All fines paid pursuant to this Section shall be paid to the City for the purpose of defraying the cost of the implementation of this Division. Nothing contained in this Division shall be construed as limiting the authority of the City to pursue any other remedy or remedies provided at law or in equity relating to vicious and dangerous dogs, including, without limitation, a criminal action pursuant to this Code, the issuance of administrative citations pursuant to Chapter 8.12 of this Code, or a civil action. Cllty�RI u1 ►U (a). If an owner or keeper of a dog fails to comply with an order issued by the Hearing Officer, the Poundmaster or his or her designee may abate the nuisance and for such purpose, the Poundmaster may enter upon private property and relocate the dog(s) thereon or remove the dog(s) therefrom. -14- (b) Any dog removed pursuant to section 4137(a) of this Division shall be delivered to the Poundmaster for safekeeping or disposal pursuant to Part 1 of this Chapter. After completion of any such relocation or removal, the Poundmaster shall prepare and transmit to the City Council a statement of the costs and expenses of such relocation or removal, which costs and expenses shall include administrative overhead expenses. The Poundmaster shall also transmit by registered mail or by personal delivery a copy of such costs and expenses to the person against whom the same is to be charged, together with the notice of the time and place at which the City Council shall consider and pass upon such statement of expenses, which time shall not be less than ten (10) days after such service of the notice herein described. At the time specified in such notice, the City Council shall consider the costs and expenses incurred in such relocation or removal and by resolution shall determine the amount of such costs and expenses and shall order and cause the same to be paid and levied as a special assessment against the real property upon which the work was performed. (c) In addition to the foregoing, the Poundmaster may execute a Notice of Lien describing the real property upon which any work was performed under section 4137(a) of this Division, the authority under which such work was done, the cost of such work as determined by the City Council, and specifying that such amount shall bear interest at the rate of six percent (6 %) per annum from the date of the City -15- 0 0 Council's determination of cost until the same is paid and may record the same in the office of the County recorder." SECTION 2. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. SECTION 3. This ordinance shall take effect on the thirty first (3 l) day after its adoption. SECTION 4. The City Clerk shall certify the adoption of this Ordinance and shall cause a copy or summary of the same to be published in the official newspaper of said City within fifteen (15) days of its adoption. [SIGNATURES ON NEXT PAGE] -16- Passed, approved and adopted this 7 th day of J anuary 2003. IW GAIL A. p&ARP Mayor of the City of Arcadia MU JUM Do WOW City Clerk APPROVED AS TO FARM: City Attorney -17- STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) SS: CITY OF ARCADIA ) I, JUNE D. ALFORD, City Clerk of the City of Arcadia, hereby certifies that the foregoing Ordinance No. 2157 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 7th day of January, 2003 and that said Ordinance was adopted by the following vote, to wit: AYES: Councilmembers Chang, Kovacic, Segal, Wuo and Marshall NOES: None ABSENT: None City Clerk of the City of Arcadia W fN��RPORAT�O' STAFF REPORT Arcadia Public Library January 7, 2003 TO: Mayor and City Council FROM: Janet Sporleder, City Librarian By: Carolyn L. Gamer, Assistant City Librarian SUBJECT: Acceptance: $1,630.00 from Starbucks and the Arcadia Firefighters Association for children's library materials. Recommendation: Accept the donation Summary Starbucks employees and the Arcadia Firefighters Association held a carwash on September 14, 2002 at which they raised $630.00. The Starbucks organization added an additional $1,000. The total $1,630.00 is being donated to purchase materials for children at the Library. Discussion Arcadia firefighters have long had a special relationship with the Arcadia Public Library's Children's Room, which is named in honor of Captain Jerry Broadwell, the first Arcadia firefighter to die in the line of duty on August 22, 1975. As part of its corporate mission, Starbucks is committed to giving back to its community. The partnership of Starbucks and the firefighters to benefit the Library was a wonderful alliance. All gifts to the Library are subject to approval by the City Council pursuant to City Charter article VIII section 809 (d). Fiscal Impact The Library will experience an added $1,630.00 to its budget allocation. Recommendation It is recommended that the City Council approve the receipt of the $1,630.00 donation to the Arcadia Public Library from Starbucks and the Arcadia Firefighters Association. Approved by: William R. Kelly, City Manager LASER IMAGED CaA/, /0 o r/0 7 /,t poi Administrative Services Department Date: January 7, 2003 To: Mayor and City Council From: Tracey L. Hause, Administrative Services Director By: Jan Steese, Purchasing Officer Subject: Purchase of computer equipment and related peripherals Recommendation: Approve the purchase of computer equipment and related peripherals for various departments from Dell Computer Corporation in the amount of $48,818.64 SUMMARY Staff is recommending the City Council authorize a purchase in the amount of $48,818.64 to Dell Computer Corporation for replacement workstations in various departments. The formal bidding requirements have been satisfied and sufficient funds are available in the 2002 -2003 FY Budget. DISCUSSION The City frequently utilizes other agency's formal bidding process as an efficient method of purchasing equipment while still remaining within the City's adopted rules and procedures. The Western States Contracting Alliance solicited competitive bids for computer equipment in May, 1999 and entered into purchasing contracts with Compaq Computer Corporation, CompUSA, Inc., Dell Computer Corporation, Gateway Companies, Inc. and IBM. Staff has thoroughly reviewed the bidding process and the contract with Dell Computer Corporation and is confident both actions meet the City's requirements and specifications. LASER IMAGED Ceti /. /oil Mayor and City Council O January 7. 2003 Staff is proposing the City complete the acquisition of re in the respective departments for the current fiscal year: Administrative Services 8 Workstations City Manager 3 Workstations Development Services 9 Workstations Library 10 Workstations placement workstations $10,937.59 $ 4,101.59 $20;107.47* $13,671.98 Total $48,818.64 *Engineering workstations require high performance processors and substantially more memory than other users workstations therefore costs aremore. FISCAL IMPACT The total cost of the proposed = acq u isitions is.$48,818.64. Funds are budgeted in the 2002 -2003 Equipment Replacement Fund. RECOMMENDATION Authorize a purchase of computer workstations from Dell Computer Corporation in the amount of $48,818.64, and waive the formal bidding process and authorize a cooperative purchase using the_ Western States Contracting Alliance bid for computer equipmerit and related. peripherals. Approved: . 14nL William R. Kelly, City Manager 0//071.2 oo I �4 STAFF it • Public Works Services Department January 7, 2003 TO: Mayor and City Council FROM: Pat Malloy, Public Works Services Director Prepared by: Gary F. Lewis, General Services' an ger Ken Herman, Associate Civil Engineer SUBJECT: Professional Services Agreement- Inspection Services Recommendation: Authorize the City Manager to enter into a Professional Services Agreement with Lee & Ro, Inc. in the amount of $65,233 for inspection services of the Chapman Well No. 7 SUMMARY The City received a $6,650,065 grant from the U.S. Environmental Protection Agency (USEPA) to improve seismic reliability of our water system. The 2001 -02 Capital Improvement Program provides for the construction of a water supply well at the Chapman Reservoir Site, which is also part of the grant funding from the USEPA. The first phase of this project, drilling of the new well is complete and the City Council accepted this work on October 1, 2001. To complete this project, it is necessary to install the well pumping equipment and construct other facility and piping components. On December 3, 2002, the City Council awarded the construction of wellhead facilities to Den Boer Engineering and Construction. Staff received four (4) proposals for construction inspection services of the well pump, associated piping, an on -site chlorination system, pump house and emergency power generator. In their proposal, Lee & Ro, Inc. submitted a well - balanced inspection services plan with the most qualified team members. This firm is well qualified to provide these services. It is staff's recommendation that the City Council award a contract in the amount of $65,233 to Lee & Ro, Inc. for the construction inspection services for the Chapman Well No. 7 wellhead facilities project. DISCUSSION The following three (3) seismic improvement projects were planned in the 2001 -02 Fiscal Year budget to provide the City with greater protection for critical water system elements in the event of a major seismic event:: LASER IMAGED 0 0 /,/. / 0 -'Q-A ? 0 0 Mayor and City Council January 7, 2003 Page 2 1. Rehabilitation of Santa Anita Reservoir No. .3 (Complete) 2. Water System Pipeline Interconnection with City of Sierra Madre (Complete) 3. Construction of a Water Supply Well at Chapman Water Facility Construction of the first two (2) projects have been completed under this grant. The construction inspection of the well pump and facilities for the Chapman Well discussed in this report are a portion of the third project. Staff requested proposals from four (4) civil engineering /construction management firms and were evaluated as follows: RANK FIRM LOCATION 1 Lee & Ro, Inc City of Industry 2 SA Associates Arcadia 3 RBF Consulting Irvine 4 Civiltec Engineering, Inc. Monrovia Staff reviewed all four proposals submitted, and interviewed Lee and Ro, Inc. and SA Associates to discuss their project plans and qualifications. Staff has concluded that Lee & Ro is the best - qualified consultant to provide construction inspection services for the Chapman Well project. Lee and Ro provided project management'.services for three federally funded CIP water projects during last year and" they have a thorough understanding of federal grant requirements. Lee & Ro. proposed a. strong, on -site inspection team, as well as very strong support from their City of Industry office for specialized disciplines; such as electrical mechanical and SCADA integration. Staff recommends that the City Council award a. Contract in the amount of $65,233 to Lee & Ro, Inca for construction inspection services for the Chapman Well No. 7 wellhead facilities project. ENVIRONMENTAL IMPACT The City Council adopted a Negative Declaration for this project on November 21, 2000, pursuant to the provisions of the California Environmental Quality Act. Staff did not find substantial evidence that this project would have a significant or potentially significant adverse effect on the environment. As a condition of federal grant approval, the USEPA also completed an Environmental Assessment under the National Environmental Policy Act and did not find this project to have significant environmental impact. Therefore, no further action is necessary for approval of entering into a professional services agreement. Mayor and City Council January 7, 2003 Page 3 FISCAL IMPACT $1,663,869 is budgeted in the 2001 -02 Capital Improvement Budget including a $154,909 additional appropriation by the City Council on December 3, 2002, and $189,334 in Federal USEPA grant funds. $148,000 is available for this work and for project contingencies. RECOMMENDATIONS 1. Award a Professional Services Agreement in the amount of $65,233 to Lee & Ro. Inc. for construction Inspection services for the Chapman Well No. 7 Wellhead Facilities Project. 2. Authorize the City Manager and City Clerk to execute a contract in a form approved by the City Attorney. Approved by: 1 1 illiam R. Kelly, City Manager PM:GL:KH:dw Attachment pb Jrc 0 0a•Tg STAFF REPORT Office of the City Manager January 7, 2003 TO: I Mayor and City Council FROM: William R. Kelly, City Managerurlk� By: Cindy Flores, Special Assistant to the City Manager SUBJECT: Peacock Corner— Phase II Recommendation to Authorize the City Manager to enter into an Agreement in the amount of $30,000 with Chapple Design Studio for the creation of Peacock Corner — Phase II Peacock Sculpture SUMMARY On November 5, 2002, the City Council allocated $25,000 from the Capital Outlay Fund to proceed with the bronze sculpture for Peacock Corner — Phase II and supported the idea of community donations to fund the remaining $25,000 estimated to complete the project. Two artists submitted models and proposals for the project. A proposal from Chapple Design Studio is attached for your review and consideration and is $1,200 less than the other proposal received and more visually appealing. DISCUSSION David Chapple is a former Arcadia resident who recently completed the Berger sculpture at Arcadia Methodist Hospital (biography and career highlights are attached). He has met with the project team and understands the importance of the proposed work at this signature corner in the community. A signed proposal with specific elements of the sculpture is also attached and a clay model has been prepared for the City Council to view. LASER IMAGED jCo N . /a / 5- �p 0 Peacock Corner — Phase II January 7, 2003 Page two FISCAL IMPACT 1 7 J The Chapple proposal is fora total cost of $30,000; $15,000 to be paid in January and $15,000 to be paid at project completion in August. An additional $5,000 should be allocated from the Capital Outlay Fund at this time to complete the - $30,000 commitment. Fundraising efforts will commence in the near future to solicit donations for the remaining work. RECOMMENDATION It is recommended that the City Council authorize the City Manager to enter into an Agreement in the amount of $30,000 with Chapple Design Studio for the creation of Peacock Corner — Phase II Bronze Sculpture and allocate an .additional $5,000 from the Capital Outlay Fund. , J7'Ui i 'i 3�A a CHAPPLE DESIGN STUDIOS DAVID CHAPPLE BIOGRAPHY Bom in 1947 in Palo Aito, Cammia; David Chapple found his artistic talents at a young age. Winning art contests beginning in grammar school, Chapple won the local , Length® Foundation Award. Qapple atteoded Arcadia Wgb School and went on to the University of California at Soma Berbera earning a Bachelor of Science in Anthropology. While in school in Santa Bathers, Cbapple workadas a te: idennist, gaving him a special understanding for his devebpirig interest in wildlife painting. QWIC vras Ad American in firotba8 at UCSB and played professionally in the National Football League 1969 -1975 as a kicker, whining AD-Pro while with the Los Angeles Rams in 1972. Beginning in 1970, Chepple started his professional career as an artist while still playing football with the Los Angeles Rama His retuemerrt from football in 1975 enabled him to turn his attention fug -time to his artistic pursuits. His love ofnature and huodermy experience has been artistically rendered in his paintings of a wide variety of buds &stored in their outdoor habitats, which he began selling prokssionally in 1970. JI'is artistic endeavors expanded to the printing median of aching, creating over 200 sold -out editions in the 1980'x. C'hepple has won numerous stamp contests EN conservation groups including Ducks Unimied, QuaR Unlimited, Trout Unlimited and various state stars for California, Keaducky, Utah and Idaho. He earned the Golden Teal award by Ducks Unliruitod for raising over $3, 000, 000.00 nation3W through the ask of his artwork and the Silver Teal Award for raising over $ I,000,000.00 i CaHfomia, His M -brig passion for golf has traaslatad unto Painting commissions for Jack Nicklaus, ABC Sports, Fred Couples, U.S. open, U.S. Senior Open, tour events and various country chubs and golf courses around the coun Further extending his artistic talents into sculpturo in the 19g0's, amppla created a diverse body ofoonmissioa work for many corporations and collections including a 6fe- sixe bronze for the Florence Griffith Joyner Manorial & Dedication. Additionally, the following corporations and groups have included commissioned sculptures by Chapple m their collections: Chiron Corporation. Laguna Audubon, Dupont Center, Foremost Insarence, Albert B. "Bert" McKee Award, Ameri9ex Corporate Collection, Cornerstone University, Arcadia Methodist Hospital, among others. Chappk's love of historic Calfornia landscape painters has inspired his m recent body of work, "Impressions of Calf rn* the June exhibition at DeRn's Fine Arts in Lagoa Beach, California. 5 Kara East Irvine, CA 92620 • Phone & Fax (714) 838 -5557 0 0 - CHAPPLE DESIGN STUDIOS DAVE CHAPPLE CAREER HIGHLIGHTS Painting Commissions: Jack Nicklaus / ABC TV Special — The Toughest Holes in Championship Golf Fred Couples Masters Victory Corporate Collection Torrey Pines Buick Open PGA Senior Open at Pinehurst U.S. Open at Pebble Beach . 35 d ', 36 and 37th Annual Bob Hope Chrysler Classic Sandpiper Golf Course at the Bacerra Resort Mauna Kea Resorts Pelican Hill Golf Course Bighorn Country Club - First Skins Game Bank of Stockton World Wildlife Museum Sculpture Commissions Florence Griffith Joyner Memorial & Dedication Chiron Corporation Laguna Audubon Dupont Center Albert B. "Bert" McKee Award Foremost Insurance Ameriflex Corporate Collection Eagle Crest Country Club Cornerstone University. Big Sky Carvers Arcadia Methodist Hospital Gallery Shows Los Angeles Natural History Museum World Wildlife Museum Palm Springs Desert Museum Leigh Yawkey Bird Art Show Over 400 Gallery shows nationwide Easton Maryland Waterfowl Show Conservation & Charity Groups Ducks Unlimited — Golden Teal Award; over 3 million sales nationally Silver Teal Award; over '1 million sales in California Quail Unlimited Trout Unlimited Various State stamps for California, Kentucky, Utah and Idaho 5 Kara East • Irvine, CA 92620 • Phone & Fax (714) 838 -5557' FROM • FAX N0. • Nov. 19 2002 02:07PM P1 CHAPPLE DESIGN STUDIOS CITY OF ARCADIA FOUNTTAIN PROJECT This proposal outlines an agreement between the City of Areadia.and artist Dave Chapple. The artist would he commissioned by Arcadia to create a bronze peacock sculpture for next year's. Centennial celebration. The quality of the finished sculpture will be vuuivalent to the bodv of work already revicwcd by the City of Arcadia representatives. The bronze will be cast in the lost wax technique and the City and Artist will jointly decide upon the final patina choices of the presentation. Size: The finished sculpture will be 6 to 7 feet tall. Production schedule: The project will begin January 2003 with a delivery date of no later than August 1; 2003. Pavment Schedule: The total cost of the bronze ($30,000) will be divided into two puyrnents of $15,000 each. One payment is duc in January 2003 and the final payment is due upon delivery of the sculpture. Additionally, the Artist will work with the City engineer and architects coordinate the bronze: design that best tits the tountam's bowl. . City of Arcadia Date, c v'., c ;« . Irvinp. CA 92620 • Phone & Fax (714) 838 -5557 CCTV �eaer STAFF REPORT ,~pp @PpAAT8 Public Works Services Department . January 7, 2003 TO: Mayor and City Council FROM: Pat Malloy, Public Works Services Director Prepared by: Gary F. Lewis, General Servic s Ma ager Rafael Fajardo, Assistant Engineer Chris Ludlum Management Analyst SUBJECT: Award of Contract —annual CCTV sewer inspections Recommendation: Authorize the City Manager to enter into a contract with National Plant Services Inc. in the amount of $60,000 for annual CCTV sewer inspections SUMMARY The Sewer Master Plan recommends completing the Closed Circuit Television (CCTV) video inspections of the entire sanitary sewer collection system to identify any substantial damages to the sewer lines. To date, approximately half of the system has been inspected and videotaped. The proposed scope of work will clean and videotape approximately 14 additional miles of sanitary sewer lines. Staff recommends that the City Council authorize the City Manager to enter into a contract with National Plant Services Inc. in the amount of $60,000 for annual CCTV sewer inspections, with four (4) one -year contract extensions upon Councils approval. DISCUSSION The City owns and maintains over 148 miles of sanitary sewer collection lines that have been in service for fifty years. The Sewer Master Plan identified Closed Circuit Television (CCTV) inspection of the entire sewer system as one of the most important projects to be completed. Since the introduction of the program, the City has inspected approximately 75 miles of the system. These CCTV inspections are also part of the Federal Mandate under the Capacity Management Operations and Maintenance regulations requiring all sewer collections systems inspected and maintained to allow for zero overflows. LASER IMAGED C o A/. Id,?. 3? Mayor and City Council January 7, 2002 Page 2 P The annual CCTV sewer inspection program is designed to locate root intrusions, grease accumulation, broken lines, cracks, reverse slope of the pipeline and potential restrictions from poorly installed laterals. After completion of CCTV inspection and cleaning of sewer line segment, the Public Works Services Department, with the assistance of an Engineering consultant, will analyze the results and locate sewer lines with substantial damage. This process also enables staff to identify pipeline locations for repair and /or adjust maintenance periods and procedures to best tailor the sewer system to prevent an overflow. Notice inviting bids was published in the adjudicated paper and bid packages were made available to area contractors. As advertised by the City Clerk, one sealed bid was received and publicly opened on December 3, 2002. BIDDER National Plant Services, Inc. BID AMOUNT $ 87,910.00 National Plant Services, Inc. submitted a bid in the amount of $87,910 for video inspecting approximately 19 miles of sewer lines, 80 hours of on -call inspection, and necessary engineering /GIS software. Since only one bid was received and the previous CCTV inspection contract expired, staff met with the City of Burbank to review their contract with National Plant Services, Inc. for the quality of the new digital technology and to compare their linear foot price with the bid amount. The City of Burbank's linear foot price was in line with the bid received by the City of Arcadia. The Capital Improvement Program includes $60,000 for this work. Because the bid price came in higher than what the budget provides, staff met with National Plant Services, Inc. and they have agreed to honor their bid by reducing the amount of work that will be required. Staff has reviewed the bid documents for content, and has investigated the contractor's background and recent project history for competency. National Plant Services, Inc. was the last contractor for this work with excellent results. National Plant Services, Inc. is properly licensed and competent to perform the job. Staff recommends that the City Council authorize the City Manager to enter into a contract with National Plant Services Inc. in the amount of $60,000 for annual CCTV sewer inspections, with four (4) one -year contract extensions Councils approval. ENVIRONMENTAL IMPACT Inspection of sewer collection systems is categorically exempted per 15301 (b) of CEQA. Mayor and City Council January 7, 2002 Page 3 FISCAL IMPACT Funds in the amount of $60,000 are budgeted in the 2002 -2003 Capital Improvement Project for annual CCTV sewer inspections from the Sewer Fund. This project amount reflects 14 miles of sewer inspection, 80 hours of on -call inspection, and necessary engineering /GIS software. RECOMMENDATIONS 1. Award a Contract to National Plant Services, Inc. in the amount of $60,000 for the 2002 -2003 annual CCTV sewer inspection project. 2. Authorize the City Manager and City Clerk to execute an Agreement in a form approved by the City Attorney. Approved by: William R. Kelly, City Manager PM:GL:dw r F � Crw".e'+r. J STAFF REPORT Public Works Services Department January 7, 2003 TO: Mayor and City Council FROM: Pat Malloy, Public Works Services Directo 1� Prepared by: Gary F. Lewis, General Services Man er Dave McVey, General Services Superintendent Chris Ludlum, Management Analyst SUBJECT: Award of Contract - installation of Parking lot and emergency electrical connection at the Community Center Recommendation: Authorize the City Manager to enter into a contract with D &J Foothill Electric in the amount of $104,600 for the installation of new parking lot and emergency electrical connection at the Community Center SUMMARY The Community Center has served as a temporary shelter and information resource center during emergency conditions resulting in the need for standby electrical generation in case of an emergency. This project includes upgrading the existing electrical switchgear at the Community Center to connect an emergency generator and the construction /extension of the existing parking lot, complete with concrete curbs, asphalt, new lighting with concrete bases, and landscaping. The parking lot is part of the final phase in the demolition of the old historical building. Staff recommends that the City Council authorize the City Manager to enter into a contract with D &J Foothill Electric in the amount of $104,600 for the installation of new parking lot and emergency electrical connection at the Community Center. BACKGROUND Upon completion of the new Historical Museum, the old modular Historical Building was abandoned and removed leaving behind an un- graded dirt lot scheduled for additional Community Center parking. The new parking lot was placed on hold awaiting the completion of emergency electrical connection plans and specifications allowing both projects to be completed simultaneously. Landscaping and a new irrigation system will also be incorporated into the extension of the parking lot and the screening of the electrical switchgear equipment panel. LASER IMAGED CO n/. / O 310 Mayor and City Council January 7, 2003 Page 2 The Community Center is used to provide temporary shelter for residents and as an information resource center during emergencies. The most recent activation of this facility was during the Santa Anita II fire. During this event, the Community Center proved to be a tremendous resource for the community. In the event of a larger natural disaster, the likelihood of a power outage at this facility is greatly increased and emergency generation would be necessary to adequately provide emergency shelter for the community. DISCUSSION The new centralized electrical switchgear with an emergency transfer switch will have the capacity.to provide emergency power to both the Community Center complex and Historical Building if Edison power is interrupted due to equipment failure or in an event of a natural disaster. During an emergency power outage, both facilities will operate under emergency power through this system to continue daily operations or provide emergency operations for food and shelter during a widespread disaster. Notices inviting bids were published in the adjudicated paper, trade journals and bid packages were distributed to area contractors. Three (3) firms attended the pre -bid job walk. As advertised, the City Clerk publicly opened the sealed bids on November 21 2002, with the following results: Bidder Location Amount D &J Foothill Electric La Verne $104,600.00 Maxwell Electric Monrovia $113,121.00 Rokni Electric Co. Monrovia $128,500.00 Staff has reviewed the bid documents for content and investigated the contractor's background and recent projects for competency. It is staffs opinion that the lowest responsible bidder is D &J Foothill Electric and that they will be able to satisfactorily perform the work. Therefore, it is recommended that the City Council authorize the City Manager to enter into a contract with D &J Foothill Electric in the amount of $104,600.00 for the installation of new parking lot and emergency electrical connection at the Community Center. ENVIRONMENTAL IMPACT The project is categorically exempt per Section 15302 (c) replacement from the requirements of the California Environmental Quality Act (CEQA) Mayor and City Council January 7, 2003 Page 3 FISCAL IMPACT $22,000 is available from the 2001 -02 Capital Improvement Budget for the Demolition of the Historical Museum Building and Expansion of the adjacent parking lot. Construction costs for the parking lot expansion are $21,650. $437,000 is available in the 2002 -03 Capital Improvement Budget as part of the "Installation of New 800 KW Emergency Generator at City Hall and Relocation of the existing 300 KW Generator to the Community Center". This is a two (2) phase project, the first phase $82,950 provides for the installation of all electrical switchgear and appurtenant hardware. RECOMMENDATION Award a contract in the amount $104,600.00 to D&J Foothill Electric for the installation of new parking lot and emergency connection for the Community Center. 2. Waive any informality in the bid or bidding process. 3. Authorize the City Manager and City Clerk to execute a contract in a form approved by the City Attorney. Approved by: — W6A William R. Kelly, City Manager PM:GL:dw © ilo71d 003 - SQtl Ho 9,uit-o STAFF REPORT DATE: January 7, 2003 Office of the City Manager TO: Mayor and City Council FROM: William R. Kelly, City Managerar\ SUBJECT: APPOINTMENT OF A DELEGATE TO THE SAN GABRIEL VALLEY MOSQUITO AND VECTOR CONTROL DISTRICT BOARD OF TRUSTEES SUMMARY In December of 2000, Roger Chandler was appointed to represent the City of Arcadia on the San Gabriel Valley Mosquito & Vector Control District Board of Trustees for a two -year term ending in January 2003. In light of Mr. Chandler's term ending, the District has informed the City of the need to appoint a representative to the Board of Trustees prior to their January 10, 2003 meeting. Mr. Chandler has verbally expressed an interest in continuing to serve on the Board and staff recommends his re- appointment. DISCUSSION The purpose of the San Gabriel Valley Mosquito & Vector Control District is to prevent new sources of vectors from developing, to control existing populations of vectors and to abate their sources. These goals are accomplished through education, prevention, control and surveillance programs. San Gabriel Valley member cities each appoint a delegate to serve on the Board of Trustees of the District. Delegates being reappointed are eligible for either a two or four -year term. New delegates are eligible only for a term of two years. It is not necessary that the delegate to the Board of Trustees be an elected official. The Board meets once a month on the second Friday at 7:00a.m. at the District's office in West Covina. Each Board Member receives a stipend of $50.00 per meeting. With experience on the Board and as a former elected official in Arcadia, Mr. Chandler has a unique background that should continue to prove useful in terms of representing Arcadia in this fashion. Staff recommends that he be re- appointed, this time to a four -year term. It is recommended that the City Council appoint Roger Chandler to a four -year term as the City of Arcadia's delegate to the San Gabriel Valley Mosquito & Vector Control District Board of Trustees. LASER IMAGED C-' (, .c/- /0� PP i Of CERTIFICATION Ar cadia I, June D. Alford, the duly elected, qualified and acting City Clerk of the City of Arcadia, California, do hereby CERTIFY that the following is a full, true and correct copy of a MINUTE MOTION adopted by the City Council of the City of Arcadia at Office of the its regular meeting held on January 7, 2003, in consideration of Agenda Item 10i: Appointment of a Delegate to the San Gabriel City Clerk Valley Mosquito and Vector Control District Board of Trustees. The following action was taken by the Arcadia City Council: "It was MOVED by Councilmember Kovacic, seconded by June D. Alford Mayor Pro tem Chang and CARRIED on roll call vote as City Clerk follows to APPOINT Roger Chandler to a four -year term as the City of Arcadia's delegate to the San Gabriel Valley Mosquito and Vector Control District Board of Trustees." AYES: Councilmembers Chang, Kovacic, Segal,'Wuo and Marshall NOES: None ABSTAIN: None ABSENT: '.None IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND AND AFFIXED THE SEAL OF THE CITY OF ARCADIA THIS 8TH DAY OF JANUARY, 2003. 9 � june 1 Alf City .Cl k` City of Arcadia, California 240 West Huntington Drive Post Office Box 60021 Arcadia, CA 91066 -6021 (626).574 -5455 (626) 447 -7524 Fax • • or�o�ld0o3 ps'A GA sr3 6q STAFF RE DATE: January 7, 2003 TO: Mayor and City Council FROM: Tracey L. Hause, Administrative Services Director By: Michael A. Casalou, Senior Management Analyst 'yYI�C SUBJECT: Professional Se rvices Agreement — GASB 34 Infrastructure Valuation Services Recommendation: Authorize the City Manager to enter into a Professional Services Agreement in an amount not to exceed $23,000.00 with Moreland & Associates for GASB 34 Infrastructure Valuation Services SUMMARY In June 1999, the Governmental Accounting Standards Board (GASB) - which sets "generally accepted accounting principles" (financial reporting rules) for all state. and local governments - established a new framework for the financial reports of state and local governments. The new framework or financial reporting model represents the biggest single change in the history of governmental accounting. This new model, known as Statement No. 34: Basic Financial Statements - and Management's Discussion and Analysis - for State and Local Governments, represents a fundamental revision of the current financial reporting model, which has been in place since 1979. A major component of the new reporting model requires that governments report their infrastructure assets (i.e. pavement, curbs, gutters, sidewalks, sewer systems, traffic signals, bridges, and street lighting systems) on the face of the financial statements. Though the City of Arcadia is ahead of the curve in regards to the data required to complete this process, many assumptions regarding "historical' (not current) value and depreciation of assets will be required for accurate reporting. Due to the extensive accounting and engineering experience needed, coupled with staffs desire to have a qualified outside party provide an "impartial' perspective, staff is recommending the City Council authorize the City Manager to enter into a professional services agreement to perform the required valuation services. DISCUSSION As previously stated, GASB is the acknowledged authoritative body in setting financial reporting rules for local and state agencies. The new model is supported by a number of users and professional associations including The National Association of State LASER IMAGED 1 Mayor and City Council January 7, 2003 0 Auditors, Comptrollers and Treasurers, the credit rating agencies (who are the primary "users" of these reports), the California Society of Municipal Finance Officers, and the Government Finance Officers Association. These reporting rules are also usually required for grants and long -term financing. In September 2002, staff solicited proposals from consulting firms to provide professional services to assist the City in implementing the infrastructure reporting requirements of GASB Statement No. 34. Specifically, the requested services involve performing infrastructure inventory and valuation services for major infrastructure networks consisting of assets within the streets right -of -way (pavement, curb & gutter, and sidewalks), sewer system, traffic signals, bridges, and the street lighting system. Requests for Proposals, were mailed to ten (10) firms, with the following two (2) firms responding: 1. Moreland & Associates Newport Beach, CA $23,000.00 2. Conrad Business Services, Inc. Irvine, CA $33,600.00 Both firms are well qualified to perform this service, however, staff is recommending Moreland & Associates, Inc. as their bid was significantly lower. FISCAL IMPACT The cost to perform this service is an amount not to exceed $23,000.00. Funding for this project was- included" in the Administrative Services Department Budget for fiscal year 2002/03. RECOMMENDATION Authorize the City Manager to enter into a Professional Services Agreement with Moreland & Associates, Inc. in an amount not to exceed $23,000.00 for GASB 34 Infrastructure Valuation Services. Approved.` 11 William R. Kelly, City Manager !. '' // s �p y p y -• t� P r r (t -� n a 1 2 4�` •i 1i ill !i.-7 alt tJ d 06.4 valcy �W& °Re =j �° STAFF REPORT Development Services Department January 7, 2003 TO: Mayor and City Council FROM: Don Penman, Assistant City Manager /Development Services Director Donna L. Butler, Community Development Administrator Prepared By: James M. Kasama, Senior Planne SUBJECT: Aooeal by the Santa Anita Oaks Homeowners' Association ARB of the and remodel at 618 Gloria Road. Recommendation: Deny SUMMARY The owners of 618 Gloria Road (Attachment 1) Mark and Alison Johnson are proposing a one -story addition and remodel. The existing two -car garage, which is attached to the rear of the house, would be converted and expanded into a master bedroom and bathroom, and a new attached three -car garage (with one space to be a tandem space) would be added to the front of the residence with a 16 -foot wide, two -car garage door facing the street. The proposed plans comply with the City's Zoning Regulations. The Santa Anita.0aks Homeowners' Association's Architectural Review Board (ARB) approved the proposed plans, subject to the condition that the garage remains in the rear yard. The John'sons appealed this condition of approval to the Planning Commission (Attachment 2). The Planning Commission approved the Johnsons' appeal on the basis that the conditional approval issued by the ARB was not arrived at in accordance with the procedures outlined in City Council Resolution No. 5290 (The Santa Anita Oaks Resolution) (Attachment 3). In particular, the Commission determined that, as required by Resolution No. 5290, a quorum was not present at the meeting at which the ARB considered the proposed addition and remodel, and therefore the proposal is' deemed approved because the ARB failed to take action within thirty (30) working days as required by Resolution No. 5290. The Santa Anita Oaks Homeowners' Association ARB has appealed the Planning Commission's action. LASER IMAGED BACKGROUND On August 12, 2002, the Johnsons submitted their proposed addition and remodel plans and a Short Review Procedure Application (i.e., consent by surrounding neighbors) for Design Review to.the Architectural Review Board_ (ARB) of the. Santa Anita ,Oaks Homeowners' Association (HOA). On August 16, 2002 the Johnsons' architect was informed by the ARB Chairman that a Regular Review Procedure (i.e., noticed hearing by the ARB) was necessary for the ARB to consider the proposed addition and remodel. The ARB held'a meeting on September 3, 2002. On September 4, 2002, the ARB issued a conditional approval of the proposed addition and remodel. The condition of approval is that the garage is to remain to the rear of the house. On September 12, 2002, the Johnsons appealed the conditional, approval to the Planning Commission. On October 22, 2002, the - Planning Commission considered the Johnsons' appeal at a public heaping, and determined that the.ARB failed to properly act on the Design Review application within the thirty, (30) working day period stipulated by City Council Resolution No. 5290, and therefore the proposed addition and remodel is deemed approved as called for in Resolution No. 5290. The Planning Commission formalized their action by adopting Resolution No. 1682 on November 12, 2002. On . November 20, 2002, the Santa Anita Oaks Homeowners' Association .ARB submitted an appeal.of the, Planning Commission's action. DISCUSSION The Johnsons' proposed addition and remodel would convert and expand an existing two -car garage, which is attached to the rear of the house, into a master bedroom and bathroom, and add a new attached three -car garage (with one space as a tandem space) to the front of the residence. A 16 -foot wide, two -car garage door would face the, street. The proposed plans comply with the City's Zoning Regulations, and are attached as Exhibit 1.b of Attachment 2. The Architectural Review Board (ARB) of the Santa Anita Oaks Homeowners' Association (HOA) approved the proposed plans, subject to .a condition ' that the garage remain to the rear_of the house. The Johnsons appealed,,this condition of approval to the Planning Commission: Their appeal letter is Attachment: 2 and includes the following exhibits: Exhibit 1.a. Application for ,Homeowner (Short Review Procedure) Exhibit 1.b. Proposed Plans. G p�3 A g o, `_1 ti1.��}t1.t`a. aa_s Association Architectural. Design . Review ARB Appeal — 618 Gloria Rd. January 7, 2003 Page 2 Exhibit 2. Architectural Design Review Board (Committee) Findings and Action dated September 4, 2002. Exhibit 3. Declaration of Pamela Blackwood (Current President of the Santa Anita Oaks Association) with the minutes of the May 19, 2002 HOA meeting. Santa Anita Oaks Regulations Section 9272.2.3 of the Arcadia Municipal Code establishes residential areas that are subject to Design Overlay Zones. City Council Resolution No. 5290 (Attachment 3) sets forth the conditions, regulations, procedures and standards by which the Santa Anita Oaks HOA may exercise its plan review authority. In order that buildings, structures and landscaping on property within the Santa Anita Oaks area will be harmonious with each other and to promote full and proper utilization of those properties, Section 3 of Resolution No. 5290 imposes Conditions on all of the properties in the Santa Anita Oaks area that address the following design related items: 1. Minimum Ground Floor Area 2. Front Yard Setbacks 3. Street Side Yard Setbacks for Detached Garages and Carports on Corner Lots 4. Setbacks From Front Property Lines for Garages and Carports 5. Tree Preservation 6. Compatibility of Exterior Building Materials 7. Compatibility of External Building Appearance In this case, Condition Nos. 2, 4, 6 and 7 are relevant to the proposed design. For Tract 13345, which includes. all of the lots on Gloria Road,, Condition No. 2 requires a minimum 55 -foot front yard setback. The proposed design provides only a 52' -10" front yard setback for the addition. However, the southerly corner of the existing residence is set back only 5.1' -3" from the front property line. Condition No. 4 requires that any garage not be closer to the front property line than the main dwelling. The proposed design complies with this requirement. Even though the garage may appear to extend approximately four (4) feet in front of the house, the garage will be set back further from the front property line because the front property line is at an angle. Condition Nos. 6 and 7 require that the materials and appearance of a structure be compatible with other structures on the same lot and with other structures in the neighborhood. The proposed addition and remodel will match the appearance of the existing house, which is compatible with the neighborhood, and therefore, the addition and remodel will be compatible with the neighborhood. ARB Appeal — 618 Gloria Rd. January 7, 2003 Page 3 El Santa Anita Oaks' Architectural Review Procedures Section 3 of Resolution No. 5290 also establishes procedures in the following Conditions: Go Architectural Design Review 8: Approval of ARB Required 9. Requirements for ARB to Be Able to Exercise Its Powers 10. Powers of the ARB 11. Short Review Process Procedures 12.. Regular Review Process Procedures 13: Expiration of ARB's Approval 14. Limit on ARB's Power 15. Appeal Procedures 16. Standards for ARB Decisions and, Appeals In this case, ARB approval is required because as stated by Condition No. 8, "No structure, roof, wall or fence greater than two (2) feet above the lowest adjacent grade, shall be erected, placed or replaced unless approved by the Board." Condition No. 9 of Resolution No. 5290 lists nine (9) requirements (a through h) that must be satisfied in order for the ARB to transact 'business and - exercise its powers. Of particular relevance to this appeal is requirement'g' which reads as follows: g. Permanent written records of the meetings, findings, 'action, and decision of the Board shall be maintained by the Board. Any. decision by the Board shall be accompanied by'specific' findings setting forth the reasons for the Board's decision. Any decision by the Board shall be made by a majority of the entire membership of the Board, and such decision shall be rendered by the Board members who considered the application. A copy of the Board's findings and 'decision shall be mailed to the ' applicant within three (3) working days of the Board's decision. In particular, the. third (3rd) paragraph of the above requirement 'g' applies to the Johnsons' appeal because the Planning Commission determined that 'a majority of the ARB did not consider and act on the proposed addition and remodel. Condition No. 12 of Section 3 of Resolution No. 5290 sets forth the Regular Review Process Procedures 'a' through T. It was this process that the ARB applied to the Johnsons' proposed addition and remodel. These procedures read as follows: a: The Regular Review Process must.be used by the Board for the review of the Conditions 1 through 5 of'Section'3, (eligible for Short Review) in those cases in which the applicant failed to obtain the signatures of approval from all of the required property owners. ARB Appeal — 618 Gloria Rd. January 7, 2003 Page 4 b. The .Regular Review Process must be used for the review of applications to those Conditions 1 through 5 of Section 3, which the Board has determined are not appropriate for the Short Review Process pursuant to the above. c. The Board.,is required to hold a noticed, scheduled meeting for the consideration of a Regular Review Process Application d. Notice of the Board's meeting shall be mailed, postage prepaid to the applicant and to all property owners within one hundred feet (100') of the subject property, not less than ten (10) calendar days before the date of such meeting. The applicant shall also provide the Board with the last known name and address, of such owners as shown upon the assessment rolls of the City or of the County. The application shall also provide the Board with letter size envelopes, which are addressed to the property owners who are to receive said notice. The applicant shall provide the proper postage on each of said envelopes. e. Any decision by the Board shall be made by a majority of the entire membership of the Board, and such decision shall be rendered by the Board members who considered the application. f. The Board shall render it's decision on a Regular Review Process application within thirty (30) working days from the date such request is filed with the Board; failure to take action in said time shall, at the end of the thirty (30) working day period, be deemed an approval of the plans. The above items 'd', 'e' and T are of relevance to the Johnsons' appeal. The Johnsons submitted their proposed plans with a Short Review Procedure Application on August 12, 2002. The application included signatures of consent from all seven (7) surrounding neighbors (Exhibit 1.a of Attachment 2). However, the ARB Chairman determined that the. Johnsons' proposal needed to be considered through the Regular Review Process and scheduled an ARB meeting for September 3, 2002, and on the following day (September 4) the ARB issued its conditional approval. Santa Anita Oaks' Architectural Review Principles Condition No. 16 of Section 3 of Resolution No. 5290 stipulates that the ARB and any body hearing an appeal of the ARB's decision, shall be guided by the following four (4) principles: a. Control of architectural appearance and use of materials shall not be so exercised that individual initiative is stifled in creating the appearance of external features of any particular structure, building, fence, wall or roof, except to the extent necessary to establish contemporary accepted standards ARB Appeal — 618 Gloria Rd. January 7, 2003 Page 5 0 a of harmony and compatibility acceptable to the Board or the body hearing an appeal in -order to, avoid that which `is excessive, garish; and substantially unrelated to the neighborhood. b. Good architectural character is based upon the principles of harmony and' proportion in the elements of the structure as well as the relationship of such principles to adjacent structures and' other structures• in the neighborhood. c. A poorly designed external appearance of a structure, wall, fence, or roof, can be detrimental to the use and enjoyment and value of adjacent property and neighborhood. d. A good relationship between adjacent front yards increases the value of properties and makes the use of both properties more enjoyable. Based on the above four (4) principles, the-ARB (or Planning Commission, or City Council on appeal) is to determine whether, or not, the proposed plans satisfy the Santa Anita Oaks Regulations as specified in Resolution No. 5290 such that the proposed front yard setback, and the proposed design of the addition and remodel will be compatible and harmonious with the other properties in the neighborhood. ARB Findings The Architectural Design Review Bdard (Committee) Findings and `'Action are included as Exhibit 2 of the Johnsons' appeal (Attachment2). Having the garage at the front of the house is the only aspect of the proposed design that the ARB found would have a significant adverse impact on the overall appearance of the property, and would be detrimental to the use and enjoyment and.value of adjacent properties and the neighborhood. The issue of having the garage at the front of the house "is not specifically addressed by`the Conditions in Resolution No. 5290. Apart from having the garage at the front of the „house, the ARB found that the proposed addition and remodel will be compatible and consistent with the existing appearance of the residence, and will be in proportion to the neighborhood (Condition Nos. 6 and 7). The ARB did not address Condition Nos. 2 and 4. Photos of the subject property and adjacent properties are shown on Attachment4. Appeal to Planning Commission The Johnsons cited the following three (3) reasons in their appeal to the'Planning Commission: 1) That the proposed addition and remodel will be compatible and harmonious with the other properties and structures in the neighborhood; ARB Appeal — 618 Gloria Rd. January 7, 2003 Page 6 2) That the ARB's decision was not rendered in accordance with the provisions of Resolution No. 5290; and 3) That the proposed plans should be deemed approved because the ARB did not act on their application within the ten (10) working days stipulated by Resolution No. 5290. In support of- Reason No. 1, the Johnsons cited the following four (4) houses on Gloria Road that have garages or carports located at the front of the house. Photographs of -these properties are included as Attachment 5. • 524 Gloria Road — This property is eight (8) lots to the south of the subject property and was built in 1951. The two -car garage was added in 1984. • 548 Gloria Road _ This house is five (5) lots to the south of the subject property and was built in 1991. • 610 Gloria Road — This property is adjacent to the south of the subject property and was built in 1951. The carport, or porte - cochere appears to be part of the original construction. There is a two -car garage to the rear of the house. • 629 Gloria Road — This house is across the street and to the north of the subject property and was built in 1951. The attached two -car garage faces sideways and appears to be part of the original construction. Only these four (4) ,properties of the 35 houses that front on Gloria Road have parking facilities at the front of the house. Condition No. 4 of Section 3 of Resolution No. 5290 requires that attached garages or carports not be closer to the front property line than the main dwelling. The proposed garage will be setback 52' -10" from the front property line. The front yard setback of the existing house is 51' -3" at the southeast corner. Therefore, the proposed plans comply with Condition No. 4 of Section 3 of Resolution No. 5290. In support of Reason .No. 2, the Johnsons provided. a Declaration from Ms. Pamela Blackwood, President of the Santa Anita Oaks Association (Exhibit 3 of Attachment 2). Ms. Blackwood's Declaration states her personal support for the Johnsons' proposed addition and remodel, and includes the minutes of the May 19, 2002 HOA meeting which documents the HOA Officers and Directors and ARB members during the time the Johnsons' proposed addition and remodel was processed. Planninq Commission Action At its meeting on October 22, 2002, the Planning Commission held a public: hearing on the Johnsons' appeal. As advised by the City Attorney, the Commission asked Mr. Jack Lynch, ARB Chairman of the Santa Anita Oaks Homeowners' Association about the processing of the Johnsons' application and plans. In particular, the ARB Appeal — 618 Gloria Rd. January 7; 2003 Page 7 Commission asked whether, or not, neighbors within 100 feet of the subject property were mailed notices of the ARB's September 3, 2002 meeting, and about which ARB members considered and acted upon the proposed addition and remodel. Mr. Lynch stated that notices, were not mailed,. and that the conditional approval of the proposed addition and remodel was rendered by Mr. Tom Beck, Mr. Carlton Seaver, Mr. Potter, and himself. Others that spoke at this public hearing were the homeowner, Mr. Mark Johnson, and Mr: Tom Beck a member of the ARB. °'Attachment'6 "is a.copy of the "October 22, 2002 Planning Commission minutes. Based on "the evidence and testimony at the meeting, the Planning Commission determined that the ARB's conditional approval was not rendered by a quorum as required by Condition No. 12.e of Section 3 of Resolution No. 5290. According to the May 19, 2002 HOA annual meeting minutes (Attached to Exhibit 3 of Attachment 2) Mr. Jim Potter was not a member of the Architectural ,Review Board as of September 3, 2002; in addition, according to the ARB Findings (Exhibit 2 of Attachment 2) Mr. Carlton Seaver was not present at the September 2002 ARB meeting, but voted "(ABSENTEE)" which does not allow" for proper due process because he was not present to hear all the evidence and testimony. The Planning Commission voted 4 to 1 to approve the John - sons' appeal and adopted Resolution No. 1682 (Attachment 7) based on the finding that the ARB, did not follow procedures because a quorum was not present at the September 3, 2002 meeting at which the ARB considered the proposed addition and remodel as required by Condition 12.6 of 'Section "3 of City Council Resolution No. 5290. The Planning Commission did not address the merits of the architectural design. Appeal to City Council On November 20, 2002, an appeal was submitted by the Santa Anita Oaks Homeowners' Association, which was signed by Mr. Jack Lynch, Chairman of the ARB and by Ms. Pamela Blackwood, President of the HOA, stating that, "'The Santa Anita Oaks Homeowners Association ARB would like to appeal 618 Gloria Road, Arcadia,'.Ca. 91006." _ Attachment 8'is a copy of this appeal letter. No reason has been stated as a basis for the appeal. Staff has made several attempts to talk with Mr. Lynch about the appeal, but has not been able to make contact. The City Council in reviewing the proposed addition and remodel.and its processing; has the following options: A. If the City Council determines that the appeal by the ARB is appropriate, the City Council 'should uphold the appeal and refer the design review back to the Planning Commission for consideration. B. If the City Council determines that the appeal should be denied; the Council should approve the proposed addition and remodel per Resolution No. 5290. ARB Appeal — 618 Gloria Rd. January 7, 2003 Page 8 ENVIRONMENTAL ANALYSIS Architectural Review decisions will not have a significant effect on the environment and are therefore exempt from the California Environmental Quality Act. RECOMMENDATION It is recommended that the City Council: Deny this appeal and uphold the Planning Commission's action, and direct staff to prepare an appropriate resolution for adoption at the next City Council meeting. Approved: William R. Kelly, City Manager Attachments: 1. Location Map and aerial photograph 2. Appeal Letter (2pp.) Exhibit 1.a,- Application for HOA Design Review (5pp.) Exhibit 1.b — Plans (6pp.) Exhibit 2 — ARB Findings and Action (2pp.) Exhibit 3 — Declaration of Ms. Blackwood (1 p.) Attachment— Minutes of 5119102 HOA meeting (4pp.) 3. Resolution 5290 (10 pgs.) 4. Photographs of subject property and of adjacent properties (2pp.) 5. Photographs of houses with garages or carports at the front (4pp.) 6. Minutes of the October 22, 2002 Planning Commission meeting (4pp.) 7. Planning Commission Resolution No. 1682 (2pp.) 8. Appeal Letter from the Santa Anita Oaks Homeowners' Association ARB ARB Appeal — 618 Gloria Rd. January 7, 2003 Page 9 e � 61 R oad Devdoprnent SerAces Deparimed \..wr ATTACHMENT 1 0 N 100 0 100 100 900 Feet 0 ntle (1114 0414 nwa n4W n4en now ... nwo mn 04 - me (140) Q (1444 t ma n GLORIA /� mn n+1+ nb19 (ism m4 P44 Ong mro 040 a 4ai (1414 'n.nl nn4 ' 031(1 mp , . (1414 0414 n.o4 014 n.4 RD ''mf0 m4 0414 n.4 ' ►pTON . m4 n4n m4 m4 001 nrnl • . Imp M4 02" mn AA 1!.4 Or iA 1m4 0.4 Q Pf11 001 nn4 041 mn m4 0 P _ (59 (12M nn4 ' MR; mn m4 .. am . soli no4 n e � 61 R oad Devdoprnent SerAces Deparimed \..wr ATTACHMENT 1 I 1 1 Y ,y ! pp ! 1! l� ! oij 1 0 I 1W I S I S GLORIA RD 1� k kk yryl 2 VY1 u u. 1 . .ti Y lW I €s I P ,rQ � lo I it lE � �. i i I ;21 i f" �'I ! 3 J J " I ! � Y `-" a� ° I a I r I ♦ .1 a. F 6 d I Y � �t y y nl � t r 1 �N } it � � 1 , ,t . , � offei • 1 ARK& ALISON JOHNSO 618 GLORIA ROAD ARCADIA, CALIFORNIA 91006 September 11, 2002 City of Arcadia Planning Department 240 West Huntington Drive Arcadia, California 91006 Re: Proposed Remodel of 618 Gloria Road, Arcadia, California Dear Planning Department: Pursuant to Arcadia City Council Resolution No. 5290 Section 15, this letter constitutes an appeal by Mark and Alison Johnson of the finding or decision issued on September 4, 2002 by the Santa Anita Oaks Home Owners Association Architectural Review Board ( "ARB ") with respect to the application submitted by the Johnson's to the ARB, on August 12, 2002 regarding the proposed remodel of their residence located at 618 Gloria Road in Tract No. 13345 of the Santa Anita Oaks (the "Remodel "). A copy of the application submitted to the ARB together with the plans for the Remodel is attached as Exhibit 1. A copy of the finding or decision issued by the ARB with respect to this application is attached as Exhibit 2. The decision of the ARB should be overturned for many reasons. First, it should be overturned because the Remodel complies with all applicable City requirements. Further, as noted in the ARB's decision, the design for the Remodel provides for the proper setbacks, is in proportion to the other improvements on the property and adjoining properties, and is consistent with the existing design of the residence. In addition, as further noted in the ARB's decision, the construction materials proposed for the Remodel are consistent with the existing materials of the residence. Further, the ARB's finding or decision that the Remodel will be detrimental to the use, enjoyment and value of adjacent properties because the garage will be located in the front yard is not supported by the evidence. First, many homes in the vicinity of the residence have garages or carports located in the front yard. These homes include the following locations or addresses: 610 Gloria Road (next door, to the residence), 629 Gloria Road (across the street from the residence), 548 Gloria Road, and 524 Gloria Road. In addition, this finding is at odds with the opinion of Pamela Blackwood,, President of the Santa Anita Oaks Home Owners Association and a real estate agent active in the Santa Anita Oaks area. Ms. Blackwood has no objection to the Remodel and believes that the Remodel will enhance the use, enjoyment and value of the Johnson residence as well as the adjacent properties and neighborhood and will not have a detrimental effect on the use, enjoyment or value of the Johnson residence or the adjacent properties or neighborhood. (See, Ms. Blackwood's Declaration attached as Exhibit 3.) In addition, the finding of the ARB should be overturned because it was not rendered in accordance with the provisions of Resolution No. 5290. Resolution No. 5290 Section 9.g states that any "decision by the [ARB] shall be made by a majority of the entire membership of the [ARB], and such decision shall be rendered by the [ARB] members who considered the ATTACHMENT 2 -p•1 City of Arcadia, Planning Department September 11,2002 Page 2 application." The ARB's decision with respect to the Remodel was not made by the majority of the membership of the ARB. The ARB has 7 members and is comprised of the following individuals: Chairperson, Jack Lynch; Member; Tom Beck; Member, Nancy Dorn; Member, Steve.Perry; Member, Carlton Seaver; Member, Clyde Stauff; and Member; John Woo. (See, Ms. Blackwood's Declaration attached as Exhibit 3.) The ARB's decision with respect to the Remodel states that it was made by Jack Lynch, Tom Beck, Carlton Seaver (absentee),:and Jim Potter. However, Mr. Potter is nota member of the ARB. Therefore, the ARB's decision with respect to the Remodel was not made by a majority of the membership of the ARB as required by Resolution No. 5290 9.g. Finally, the ARB's decision with respect tothe Remodel should be overturned because the AR13 should be deemed to have approved the Remodel pursuant.to Resolution No. 5290 Section 11. On August 12, 2002, "our architect, Jeffrey Shifs, personally delivered to Jack Lynch, Chairperson of the ARB, a completed application for the Remodel. 'The application included a consent form signed by all of the adjoining property owners. (See, Exhibit 1.) Therefore, the application was submitted pursuant to the short review process or procedure outlined in Resolution No. 5290 Section 11. If the ARB determines that any'condition set forth in an application is not appropriate for the Short Review Process, pursuant to Resolution No. 5290 Section l Ld, it is required to file in writing with the.City Clerk and Director of Planning a list of the conditionain the application that it believes are not appiopriate.for the Short Review Process. We do not believe that any such filing was made with respect to the application for the Remodel. Therefore, the Short Review Process applies to the application for the Remodel. Resolution No. 5290 Section l l .estates that "[t]he Board Chairman, of another Board member, designated by the Board Chairman to act in his behalf, shall rendet.his decision on a Short Review Process application within ten (10) working days from the date such request is filed with the Board, failure to take action in said time shall at the end of the ten' (10) working day period, be deemed an approval of the plans." Neither the ARB nor its Chairman rendered any decision' ecision on the application the Remodel until September 4, 2002. That date is more than ten working "days from the submittal to the ARB on August 12, 2002 of the application for the Remodel pursuant to the Short Review Process. Therefore, pursuant to Resolution No, 5290 Section 1 l.c, the ARB should be deemed to have approved the application for the Remodel. Thank you for your consideration of this appeal. Please do not hesitate to call me at (626) 836 -0875 if you have any questions or would' like td discuss this matter further: Sincerel Mark D . "Johnson MDJ /cg Enclosures 40540795.1 ATTACHMENT 2 —p.2 A, PROJECT ADDRESS B, PROPERTY OWNER I� M FILE NO. DATE FILED APPLICATION FOR HOMEOWNER ASSOCIATION ARCHITECTURAL DESIGN REVIEW (SHORT REVIEW PROCEDURE) &l8 GLotzIA t /a3� MARK �Lt50N �DF+N ADDRESS ( ?F DIFFERENT) 5A M E TELEPHONE NUMBER 2 3' b 8 7 S C, APPLICANT (IF OTHER THAN OWNER) � EFP�EY S tit FS I A:RG[tl "CELT boo fntoGDl -,4ND RIVE ADDRESS Sl, A� (ZRA y lfzE t Cf'� `1 (o 7-4 TELEPHONE NUMBER 2 1 3 5 S - o 2 - 22 D. DESCRIPTION OF PROJECT (check applicable) tf368 S LtL FADDITICNi Re5CIN(> [ENCLOSED ADDITION TO MAIN DWELLING tN ' S t° T C � of SQUARE FOOTAGE TO BE ADDED 41 2 4 �' [) UNENCLOSED ADDITION SQUARE FOOTAGE OF ADDITON CoMPL6TE Re- Eliy� os F Af LET SPED fl ED PAY PRo( ty [ROOFING bbLuw �st�aw tAMet wtTN R SPECIFY MATERIALS pE D4 PE�oVED mY TEDME�W�E12 S pGtc [✓)'EXTERIOR ALTERATIONS (describe below) [) EXTERIOR WALLS OR FENCES (describe below) [] MER (describe below) /TI(DN5 TD 7F? A-U_ l stir( Woop L I N U t�T SEN1E LA1 t H WooD GL�`. -D Gp�S �9�lEN'f I� sSE-�.t Lt E S � c o wA-t-+"- tES. i TF—1 M U AALD F#4,CAA CeMPOPEVT5- ,,feGtcAXCLoN DE "r301ARUET" CL- N%(oN" STONE vagl t'R w lTri CAf tAlz tL ON pop- of i� 5 T TF-E Ff- OfrCAGE (EA5T) E.L , A , TtoN TD t°fATGtt c�CLSLrA(o AT T1 TO pED f3YL PR-0PE`F�T'( DwN�R Exhibit l.a , WE, THE UNDERSIGNED (SIGNATURES) OWNERS OF ADJACENT PROPERTY, CERTIFY THAT WE HAVE.READ THE FOREGOING APPLICATION, AND HAVE SEEN THE PROPOSED PLANS, AND HEREBY GRANT OUR CONSENT TO THE PROPOSED PROJECT. ADJACENT PROPERTY OWNERS SHALL BE CONSIDERED "1v Zr. ALL rRVr nnu BOUNDARIES ;ARE, IN SvxOLE OR IN PART, CO- TERMINUS WITH THE SUBJECT ) PROPER EXA ?tPLE . z 3 i �k I .2 I i a x r v � � On x a.s �g d I i a x p I w p < LLI sa oa YINOlg \I O I y 1 ),I r v � � On • IvV vvA i ��v iy w p Y a p I w p < LLI sa oa YINOlg \I O I y 1 ),I W so' � s I I I� I II x I I ! F y b I I I i v00 I I i � - -- j N I I i r A .1 A kS • IvV vvA i ��v iy W so' � s I I I� I II x I I ! F y b I I I i v00 I I i � - -- j N I I i r A .1 A kS � x ) \ ^ \�� :}�� [ I a11, . z } .. .a% .y 2 � | \ . ] � �� .� �� d { \� � � . , - d � |� | LL . \ ( i� �. . > � � -- ��.�v� \ � § I \� § `� �� ] � yp � , y . l F \ { z » ` § i j ^ F, � � ^ ] � � ; jl�—___Ij d 5 x I MI Oli 04 2 � | \ . ] � �� .� �� d { \� � � . , - d � |� | LL . \ ( i� �. . > � � -- ��.�v� \ � § I \� § `� �� ] � yp � , y . l F \ { z » ` § i j ^ F, � � ^ ] � � ; jl�—___Ij d 5 V " 7 U W 0 4 a < L Ci 4 § Y a3 rLrRRg �i V " 7 U W 0 4 a < L Ci 4 § Y a3 V " 7 I § Y — - -, I I eF J V _ a I � - I I I: I I I V " 7 ) � � ~ � i ( Am, : �( A j ! ) & | )\ :\ ..)!; ) � � ~ � i ( Am, : �( A j ! ) 1� X [�� 4JS W o to U1, ms`s O iu I I� NMI oV c n ' • I:I�I�II��N�I i I �II�IIi'�: � I I . � E wil FRO I '� i II I � O II Illy i O lhll il; w i 1uy� ,�� W p N i I I I• s • FILE N0. DATE 9-Lf 0 ;2, ARCHITECTURAL DESIGN REVIEW BOARD (COMITTEE) FINDINGS AND ACTION A. PROJECT ADDRESS _ 6 /g r B. PROPERTY OWNER � ADDRESS (IF DIFFERENT) C. FINDINGS (only check those that apply, and provide a written explanation for each check) 1. The proposed construction materials QQ ARE, (] ARE NOT compatible with the existing materials, because 2. The proposed materials WILL, [] WILL NOT have a significant adverse impact on the overall appearance of the property, because 7/} /N OM', l�-!9kWlag N�dM it Grl✓J T/� F Ni V�.0 3. The proposed project.KIS, [] IS NOT significantly visible from the adjoining public rights of way, because 4. The proposed project ;T IS, [] IS NOT significantly visible from adjoining properties, because 5. The elements of the structure's design ,El' [] ARE NOT consistent with the existing building's design, because 6. The proposed project,[J�IS, [] IS NOT in proportion to other improvements on the.subject site or to improvements on other properties in the neighborhood, because 7. The location of the proposed project�J� WILL, [] WILL NOT be detrimental to the use and enjoyment and value of adjacent property and neighborhood neighborhood, because 7h}—< l,q%A/A 01VA 1,0 / /' /_ T 8. The proposed project's setbacks [-nO , [] DO NOT provide for adequate separation between improvements on the same or adjoining properties, because A Exhibit 2 9. OTHER .FINDINGS D. ACTION [] APPROVAL APPROVAL SUBJECT TO THE FOLOWING CONDITIONS) [] DENIAL E. DATE OF ARCHITECTURAL REVIEW BOARD'S (COMMITTEE'S) ACTION F. BOARD (COMMITTEE) MEMBER(S) RENDERING THE;ABOVE DECISION 'TOM /_ ZA-f /vr > _TAGk A y!U/f/ T /rl PD7T�i2 G. REPRESENTING,THE ASSOCIATION H. APPEALS Appals from ,the.Board's (Committee's) decision shall be made to the Planning Commission. Anyone desiring to make such-an appeal should contact the requirements, fees and proceedures. Said appeal must „be made in writing and delivered to the Planning Department, 240 W. Huntington Drive, Arcadia, CA 91006,' within seven.(7) working days of the.,Bo.ard's (Committee's) decision. I. EXPIRATION OF APPROVAL If for a period of one (I) year from the date of approval, any project for which plans have been approved by the Board. (Committee), has been `.unused, abandoned or discontinued, said approval shall.become null and void and of no effect.. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF PAMELA BLACKWOOD I, Pamela Blackwood, declare as follows: 1. The following facts are known by me to be true based on my own personal knowledge. 2. I am the President of the Santa Anita Oaks Home Owners Association ( "SAOHOA "). In addition, I am a real estate agent actively involved in the purchase and sale of homes in the Arcadia area, including the Santa Anita Oaks area. 3. I have reviewed the plans prepared by Jeffrey Shifs for the remodel of the residence owned by Mark and Alison Johnson and located at 618 Gloria Road, Arcadia California (the 'Remodel'). I have no objection to the Remodel. In my opinion, the Remodel will improve the overall appearance of the Johnson residence. In addition, I believe the Remodel will enhance the use, enjoyment and value of the Johnson residence as well as the adjacent properties and neighborhood and will not have a detrimental effect on the use, enjoyment or value of the Johnson residence or the adjacent properties or neighborhood. 4. The last annual meeting of SAOHOA was held on May 19, 2002. At that meeting I was elected President of the SAOHOA. In addition, at that meeting, the following persons were elected to serve on the SAOHOA Architectural Review Board for the year commencing on May 19, 2002: Chairperson: Jack Lynch; Member: Tom Beck; Member: Nancy Dorn; Member: Steve Perry; Member: Carlton Seaver; Member: Clyde Stauff; and Member: John Woo. A true and correct copy of the minutes of this annual meeting of the SAOHOA is attached. I declare under the laws of the State of California that the foregoing is true and correct. Executed this P day of September, 2002, in Arcadia, California. 40540487.1 Exhibit 3' 0 Santa Anita Homeowners' Association Annual Meeting/Party May 19, 2002 Agenda 0 Call to order: GOOD AFTERNOON Welcome to the Santa Anita Oaks Homeowners' Association Annual Business Meeting for the election of Officers And Directors/ Party On behalf of the Santa Anita Oaks Homeowners' Association I would like to thank our gracious hosts Terry and Pamela Blackwood for opening their beautiful home to us today. Thank You! Appreciation: On behalf of the Santa Anita Oaks Homeowners Association I would like to express our appreciation and thanks to the following people: The outgoing Officers and Directors member: President George Bennett Vice President Larry Wilson Treasurer John Snider Secretary Laura Kwok Director Bashir Ahmad Director Ruth Bell Director Pamela Blackwood Director Robbin Cohen Director Janice Corey Director Suzanne Coulter Director Gene Detmer Director Jimmy Jiang Director Mark Johnson Director Michael Lin Director Joan McCann Director Karen McAlister Director Carol O'Toole Director Keppie Sullivan The outgoing Architectural Review Board Members: i Attachment to Exhibit 3 0 o Chairperson Jack Lynch Member Tom Beck Member Nancy Dorn Member Steve Perry Member Carlton Seaver Member Clyde Stauff Member John Woo Treasurer's Report. President's Report Highlights of Major Activities: Annual Meeting/Party was the result of the efforts of Leona Madikians, Patty.NiJar, Nafissa Rashidi (Shakoor),,Karen McAlister, Pamela Blackwood, Ruth Bell, Joan McCann, I and'Janice. Corey: Sound Wall: Larry Wilson was Chairman of the Sound wall committee. We must look out for ourselves. We caught the fact that SAOHA sound wall was left out of the Caltrans budget. The States funding blessed us. We need to stay on top of this issue. Filming Issue: Joan McCann has single handedly caused thousand of dollars from the film production companies to be donated to- SAOHA. City was not particularly helpful on putting a letter requesting a donation. The City Attorney has rewriting of the letter to be a reluctant notice. I rewrote the letter suggesting a donation for the film companies of $200 for'the first day of each production and $75 for each day after. Don Penman, with City, has worked with us and is helping. Current City policy is to allow filming at a home once each three months. The Board supports this restriction. Neighborhood Watch- Mark and Allison Johnson are Neighborhood Watch Co- Chairpersons: Carol O'Toole and Janice Corey are on the committee. We need your help as a volunteer to be a block captain.'Stolen car and annual Christmas break rampages. I believe that this issue should be our number one priority. If you wish to help, see them. Highland Oaks Homeowner Association Sign- At the 2000 Annual meeting I announced that, we were looking into joining with the Highlands Oaks Homeowners Association and placing 4 sign on the median in Santa Anita Avenue above Foothill Blvd. Later that year, having SAOHA's name on the sign lost by one vote at a board meeting. Mark Johnson changed his vote to a no vote at the last minute. Some people are very upset over the Highland Oaks sign on Santa Anita Oaks. Currently Bashir Ahmad, Joyce Getzen and Larry Wilson are on a committee to work with Highland Oaks Homeowner Association's President Jeff Bowen to see what can be done about the sign. Possibly to explore ways to renegotiate the placement and size of the Highland Oaks sign. If you wish to join that committee see them. Peacock Issues: Carol O'Toole presented a petition asking the Mayor to initiate a proposal to control the peacocks. Bashir Ahinad volunteered Mahmuda, his wife, to chair the committee for this issue with Barbie Betz to join. If you wish to join that committee see them. We are looking into publishing another newsletter with the help of Keppie Sullivan and Carol O'Toole. To find our web site: 1. www.ci.arcadia;ca.us 2. Then click on About Acadia 3. Then click on Santa Anita Oaks Association At Gino Roncelli's request, I am looking into having just one thrash collection day rather than the current every day is trash day in some part of SAOHA. The two homeowners associations near the arboretum had a party and it was a big success. Pamela Blackwood is talk to the Upper Rancho Association and the Highland Oaks Homeowner Association about having a joint party with our homeowners associations. The other associations are interested in having a party with us. The arboretum will charge a small fee for the party. Election: The following Slate of Officers and Directors has been submitted by the nominating committee: Officers and Directors member: President Pamela Blackwood Vice President Larry Wilson Treasurer John Snider � o Secretary Carol O'Toole Director. B ashir'Ahmad Director Ruth Bell Director George Bennett Director Gene' Detmer Director Joyce Getzen Director Susan Girgius Director- 'Sheryl Hunter Director Mark Johnson ,Director Laura K wok ., Director Leona Director Joan McCann' Director Karen McAlister Director Rosemary Plamondon Director Nafissa Rashidi Director Keppie Sullivan Director John Woo Architectural-Review Board. ' a committee of the Homeowners Association And created by a resolution of the Arcadia City Council. Chairperson Jack Lynch Member Tom Beck Member Nancy Dorn Member Steve Perry Member Carlton Seaver Member Clyde Stauff Member John Woo Are there any nominations from the floor for - an Officer or a Director? I will entertain a motion from the floor to ratify the slate of Officers and Directors of the Homeowners Association and the Architectural Review Board Chairperson and members. All those in favor say Aye. All those opposed say Nay. Thank you all for coming. Please use the rest of party to meet and greet your neighbors. 4 RESOLUTION NO. 5290 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DETERMINING AND AMENDING REGULATIONS APPLICABLE TO REAL PROPERTY IN THE SANTA ANITA OAKS "D" ARCHITECTURAL DESIGN ZONE AREA. THE CITY COUNCIL OF THE CITY OF ARCADIA DOES DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. That the City Council hereby repeals Resolution No. 5231, and adopts the following Resolution pursuant to Ordinance No. 1815, for the property described in Exhibit "A ", attached hereto. To implement the regulations applicable to the real property within the Santa Anita Oaks Homeowners' Association "D" Architectural Design Zone area, the Architectural Review Board is established and is hereinafter referred to as the "Board ". The governing body of the Board, is the Santa Anita Oaks Homeowners' Association. SECTION 2. In order to promote and maintain the quality single - family residential environment of the City of Arcadia, and to protect the property values and architectural character of such residential environments, in those portions of the City in which the residents have formed a homeowners association, and to accomplish the purposes set forth in Section 4, there is hereby established the following regulations and procedures in which said association may exercise plan review authority. SECTION 3. In order that buildings, structures and landscaping on property within said area will be harmonious with each other and to promote the full and proper utilization of said property, the following conditions are hereby imposed upon all property in said area pursuant to the zoning regulations of the Arcadia Municipal Code, and all those in control of property within said area, are subject to this Resolution and Ordinance No. 1832: 1. FLOOR AREA. No one - family dwelling shall be erected or permitted which contains less than 2,000 square feet of ground floor area, except in Tracts 14656, 13544, and 10617 in which no one - family dwelling shall be erected or permitted_, which contain less than 1,800 square feet of ground floor area. The space contained within an open porch, open entry, balcony, garage, whether or not it is an integral part of the dwelling, patio, basement, or cellar shall not be considered.in ATTACHMENT 3 • o computing the square footage contained in any such building. The minimum required floor area; shall be deemed to include the area measured from the outer faces of the exterior walls. 2. FRONT YARD. No building shall be erected less than sixty-five (65) feet from the front property line, except that Tract 13544 shall be not less than sixty (60) feet, Tracts 13345 and 11013 shall not be less than fifty -five (55) feet, and Tract 14656 shall not be less than fifty (50) feet. If a dwelling with a larger front yard than the minimum required by the underlying zone designation exists on a lot on either side of a lot proposed to be improved, the Board shall have .the power. to require an appropriate front yard on the lot to be improved, including a setback up to a size as large as an adjacent front yard. 3. CORNER LOTS. On a corner lot, a separate carport or garage not connected to a dwelling, as an integral part thereof, shall not be located less than twenty (20) feet, at any point, from the side street.property line. 4. GARAGES. A carport or garage not connected to a dwelling, as an integral part thereof, shall not be located less than one hundred fifty (150) feet from the front property line, except for Tract 11013 which shall be one hundred forty. (140) feet and Tracts 13345,,14656 and 13544 which shall be one hundred twenty -five (1.25) feet,, and in no case, shall the garage or carport be closer to the front property line than the main dwelling. 5. TREES. No living oak, sycamore, liquidambar, magnolia, or pine tree with a trunk diameter ,larger than six inches, measured at a point on the tree which is 'not more than three feet above the grade immediately adjacent to said tree, shall be cut down, killed or removed in any manner, without first securing the written permission of the Board. Such permission shall not be granted unless it is shown that the tree is a nuisance, and that there is no practical way of removing the nuisance except by, cutting down, killing or removing it. 6: EXTERIOR BUILDING MATERIALS: Materials used on the exterior of any structure, including roofing, wall or fence ,greater than two (2) feet above the lowest adjacent grade, shall be compatible with materials of other structures on the same lot and with,other structures in the neighborhood. 7. EXTERIOR BUILDING APPEARANCE. The appearance of any structure, including roof, wall or fence shall, be compatible with existing structures, roofing, walls or fences in the neighborhood. -2- 5290 8. APPROVAL OF BOARD REQUIRED. No structure, roof, wall or fence greater than two (2) feet above the lowest adjacent grade, shall be erected, placed or replaced unless approved by the Board. Plans for the erection, placement, or replacement of any structure, roof, wall or fence, showing the precise location on the lot of the structure, wall or fence, shall besubmitted to the Board. No structure, roof, wall or fence shall be erected, placed or replaced except,in exact conformance with the plans approved by the Board. If necessary to properly consider any application, the Board may require specific plans, working drawings, specifications, color charts and material samples. The provisions- of this requirement shall not apply if the project consists only of work inside a building which does not substantially change the external appearance of the building. 9. ARCHITECTURAL REVIEW BOARD. The Board shall be empowered to transact business and exercise powers herein conferred, only if the following requirements exist: a. A formally organized property owner's organization exists in said area. b. The organization has by -laws adopted that authorize the establishment of the Board. c. Said by -laws provide for appointment of property owners, only, to,the Board. d. Owners have been appointed to the Board in accordance with.the by -laws. e. A copy of.the by -laws and any amendments thereto have been filed with the City Clerk and the Director of Planning. f. The Board shall designate a custodian of records who shall maintain said records and make them available for public review upon reasonable request. g. Permanent written records of the meetings, findings, action, and decision of the Board shall be maintained by the Board. ., Any decision by the Board shall be accompanied by specific findings setting forth the reasons for the Board's decision. Any decision by the Board shall be made by a majority of the entire membership of the Board, and such decision shall be rendered by the Board members who considered the application. A copy of the Board's findings and decision shall be mailed to the applicant within three (3) working days of the Board's decision. 3 - 5290 • o h. All meetings of the `Board shall be open to the public in accordance with the Ralph M. Brown Act (California Open Meeting Law). 10. POWERS OF THE BOARD. The Board shall have the power'to: �a:. Determine and approve an appropriate front yard pursuant to Condition 2 of Section 3. b. Determine whether materials and , appearance are compatible in accordance with =the above Conditions 6 & 7 of Section 3. c. If a grading plan is required for a building permit for a structure, the Board may =require such plan to be submitted along with the building plans. d.' Any of the conditions set forth in Conditions 1 through 5 of Section 3, may be made less restrictive by the Board if the Board determines that such action will foster, the development of a lot and will not adversely affect the use and enjoyment of the adjacent lots .and the general neighborhood and would not be inconsistent with the provisions. and intent of this Resolution. e. The Board shall have thee. power to establish rules for the purpose of exercising its duties, subject to review and approval.of the City. Copies of such rules shall be kept on file with the Secretary of the Association and the City Clerk. 11. SHORT REVIEW PROCESS PROCEDURE. a. The Short Review Process may be used by the Board for the review of applications for modifications to the requirements set forth in Condition's 1 through 5 of Section 3,'provided that the application for a`Short Review Process shall be accompanied by -a completed application form which shall contain the signatures of all contiguous property owners indicating their awareness and approval of the application. b.. The Board is riot required to hold 'a noticed, scheduled meeting for the consideration of a Short Review Process - Application. c. The Board Chairman or another Board,member designated by the Board Chairman, to,act in his absence, shall render his decision on a Short Review- Process application within ten .(10) working. days from the date such request is filed with the Board; failure to take action in said time shall, at the end of the' ten (10) working day period, be deemed an approval of the plans. d. The Board may determine which requirements set forth in Conditions 1 through 5 of Section. ,3 are not appropriate. for the Short Review Process, and therefore require the Regular Review Process- for the consideration; such Condition.' Any list of such Conditions which are not appropriate for the, Short -4- 5290 Review Process shall be filed in writing with the City Clerk and the Director of Planning. 12. -REGULAR REVIEW PROCESS PROCEDURES. a. The Regular Review Process must be used by the Board for the review of the Conditions 1 through 5 of Section 3, (eligible for Short Review) in those cases in which the applicant failed to obtain the signatures of approval from all of the required property owners. b. The Regular Review Process must be used for the review of applications to those Conditions 1 through 5 of Section 3, which the Board has determined are not appropriate for the Short Review Process pursuant to the above. c. The Board is required to hold a noticed, scheduled meeting for the consideration of a Regular Review Process Application. d. Notice of the Board's meeting shall be mailed, postage prepaid to the applicant and to all "property owners within one hundred feet (100') of the subject property, not less than ten (10) calendar days before the date of such meeting. The applicant shall also provide the Board with the last known name and address, of such owners as shown upon the assessment rolls of the City or of the County. The application shall also provide the Board with letter size envelopes, which are addressed to the property owners who are to receive said• notice. The applicant shall provide the proper postage on each of said envelopes. e. Any decision by the Board shall be made by a majority of the entire membership of the Board, and such decision shall be rendered by the Board members who considered the application. f. The Board shall render it's decision on a Regular Review Process application within thirty (30) working days from the date such request is filed with the Board; failure to take action in said time shall, at the end of the thirty (30) working day period, be deemed an approval of the plans. 13. EXPIRATION OF BOARD'S APPROVAL. If for a period of one (1) year from date of approval, any project for which plans have been approved by the Board, has been unused, abandoned or discontinued, said approval shall become null and void and of no effect. 14. LIMIT ON BOARD'S POWER. The Board shall not have the power to waive any regulations in the Code pertaining to the basic zone of the property in said area. The Board may, however, make a recommendation to the City agency, -5- 5290 o which will be .considering any such waiver request, regarding waiving such regulations. 15. APPEAL. Appeals from the Board shall be made to the Planning Commission. Said appeal shall.be'made in writing and delivered to the Planning Department within seven ..(7) working days of the Board's', decision and shall be accompanied by. an appeal fee in accordance with the applicable fee schedule adopted by resolution of the City Council. Upon. receipt in proper -form of an appeal from the Board's. decision, such appeal shall be processed by the Planning Department in accordance with the same.. procedures applicable to, appeals from the Modification Committee. 16. STANDARDS FOR BOARD DECISIONS AND APPEALS. The Board and any body hearing an appeal from the Board's decision 'shall ,be. guided" by. the following principles: a. Control of architectural appearance and use. of . materials shall not. be so exercised. that individual initiative is `stifled in creating the appearance of external features of any particular structure, building, fence, wall or roof, except. to .the•.extent necessary to,- establish contemporary accepted standards of harmony and compatibility acceptable to the Board or the body hearing an appeal in order to avoid that which is excessive, garish, and substantially unrelated to the neighborhood. (Pertains to Conditions Nos"6 & 7_of Section 3 of this Resolution - Exterior Building Materials & Exterior Building Appearance). b. Good architectural character is based upon the principles of harmony and proportion im the elements of the structure as well as the relationship of `such principles to adjacent structures and other structures in the neighborhood. (Pertains. to Conditions Nos. 6 ;& 7. of Section 3 of this Resolution - Exterior Building Materials & Exterior Building. Appearance). c. A poorly designed external appearance of a structure, wall, fence, or roof, can be detrimental to the use and enjoyment and value of adjacent .property and neighborhood. (Pertains to,Conditions Nos. 6 & 7 of Section 3 of this Resolution - Exterior, Building Materials & Exterior Building Appearance). d. A good relationship between adjacent front yards increases the value of properties and makes the use of both properties more enjoyable. > (Pertains to Condition No. 2 of Section 3 of this Resolution .= Front yards). SECTION 4. The :City Council finds and determines that the public health, safety-and general :welfare of the community require the adoption of this Resolution. It is determined that the various land use controls, and property -6- 5290 • 4 regulations as set forth herein are substantially related to maintenance of Arcadia's . environment, for the purpose of assuring that the appearance of structures will be compatible and harmonious with the use and enjoyment of surrounding properties. Design controls and aesthetic considerations will help maintain the beauty of the community, protect property values, and help assure protection from deterioration, blight, and unattractiveness all of which can have a negative impact on the environment of the community, effecting property values, and the quality of life which is characteristic of Arcadia. It is further, determined that the purpose and function of this Resolution is consistent with the history of the City and continued efforts through various means to maintain the City's land use, environmental, and economic goals and to assure perpetuation of both the psychological benefits and economic interests concomitant to an attractive, well maintained community with emphasis on residential living. All findings and statements of purpose in related Resolutions which pre- existed this Resolution or prior covenants, conditions, and restrictions constitute part of the rationale for this Resolution and are incorporated by reference. SECTION 5. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Resolution is for any reason held to be invalid by the final, decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The Council hereby declares that it would have adopted this Resolution and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof irrespective of the fact ,that any one or more section, subsection, subdivision, sentence, clause, phrase, or portion thereof be declared invalid. SECTION 6. That the City Clerk shall certify to the adoption of this Resolution. Passed, approved and adopted this 1st day of April, 1986. /s/ DONALD PELLEGRINO Mayor of the City of Arcadia ATTEST: /s/ CHRISTINE VAN MAANEN City Clerk of the City of Arcadia -7- 5290 a o STATE OF CALIFORNIA ) COUNTY OF'LOS ANGELES ) SS: CITY OF ARCADIA ) I/ CHRISTINE VAN..MAANEN, Clerk of the City of Arcadia, hereby certify_ that the foregoing Resolution'No. 5290 was passed and adopted by the City Council of the City of Arcadia; signed by the Mayor and attested to by, the City Clerk at a regular meeting of said Council held on the 1st day of April; 1986, and that :said Resolution was adopted by the following vote, to wit: ` AYES: Councilmen Gilb; Hannah, Lojeski, Young and Pellegrino NOES: None ABSENT: None /s/ CHRISTINE VAN MAANEN City Clerk of the City of Arcadia 5290 • i EXHIBIT "A" Beginning at a point at the intersection of the centerline of Baldwin Avenue and the centerline of Orange Grove Avenue; thence easterly along the centerline of Orange Grove Avenue to its intersection with the centerline of Oakmeadow Road; thence southerly along the centerline of Oakmeadow Road to its intersection with the centerline of Hacienda Drive; thence westerly along the centerline of Hacienda Drive to its intersection with the centerline of San Carlos Road; thence southerly along the centerline of San Carlos Road to its intersection with the centerline of Foothill Boulevard; thence westerly along the centerline of Foothill Boulevard to its intersection with the centerline of Baldwin Avenue; thence northerly along the centerline of Baldwin Avenue to the point of beginning., Beginning at a point at the intersection of the centerline of Oakmeadow Road .and the centerline of Orange Grove Avenue; thence easterly along the centerline of Orange Grove Avenue to its intersection with the centerline of Santa Anita Avenue; thence southerly along the centerline of Santa Anita Avenue to its intersection with the easterly prolongation of the southerly property line of Lot No. 76 of Tract No. 11074; thence westerly along said easterly prolongation and said southerly property line to its intersection with the westerly property line of Lot No. 76 of Tract No. 11074; thence southerly along the prolongation of said westerly property line to its intersection with the centerline of Foothill Boulevard; thence westerly along the centerline of Foothill Boulevard to its intersection with the centerline of San Carlos Road; thence northerly along the centerline of San Carlos Road to its intersection with the centerline of Hacienda Drive; thence easterly along the centerline of Hacienda Drive to its intersection with the centerline of Oakmeadow Road; thence northerly along the centerline of Oakmeadow Road to the point of beginning. Beginning at a point at the intersection of the centerline of Santa Anita Avenue and the easterly prolongation of the southerly property,line of Lot No. 76 of Tract No. 11074; thence westerly along said easterly prolongation and said southerly property line to its intersection with the westerly property line of Lot No. 76 of Tract No. 11074; thence southerly along the prolongation of said westerly property line of distance of 65 feet; thence easterly along a line parallel to the southerly property line of Lot 76 of Tract No. 11074 to its intersection with the centerline of Santa Anita Avenue; thence northerly along the centerline of Santa Anita Avenue a distance of 65 feet to the point of beginning. EXHIBIT "A" cont'd -9- 5290 s 4 EXHIBIT "A" Beginning at a point on easterly line of Michillinda- Avenue; said point being. the southwesterly corner of Lot 36, Tract No. 15928; thence easterly along the southerly boundary of said Tract No: 15928 and Tract No. 14428 to a point which is the northwesterly corner of Lot 12, tract No. 15960; thence southerly along the westerly line of said Lot 12 and its prolongation thereof to its intersection with the centerline of De Anza Place; thence southerly and easterly along said centerline of its intersection with the centerline of Hugo Reid. Drive; thence easterly along said centerline to its intersection with the centerline of Golden West Avenue; thence northwesterly along said centerline to its intersection with the centerline of Tallac Drive; thence easterly along said centerline to its intersection with the easterly line of Tract No. 13312; thence southerly along the easterly and northerly lines of Lots 11 through 19. of said tract to be northeast corner of said Lot 19;' thence easterly along the northerly line of said tract to the northwesterly corner of Lot 62 of said Tract No. 12786; thence southerly along the westerly line of said lot and its prolongation thereof to its intersection with the centerline of Hugo Reid Drive, thence easterly along said centerline to its intersection with` the northeasterly prolongation of the easterly line of `Tract 12786; thence southerly along said easterly line and also the easterly line of Tract No. 12104 to the southeast corner of Lot 129 of said Tract 12104; thence westerly along the southerly lines of Tract No, 12104, Tract 11688, and Tract No. 11932 and its - westerly prolongation to its intersection with the centerline of Cortez Road; thence northerly along said centerline to its intersection with the centerline of distance of 150' more or less to a point; thence northerly to a point on the northerly line of Portola Drive;; said point being 140' westerly from ' the northwesterly corner of Portola Drive and Cortez Road, thence northerly to the southwest corner-of Lot 28, Tract 11932; thence northerly along the westerly line of said tract and its prolongation thereof to its intersection with the centerline of Balboa Drive; thence westerly along- said centerline to its, intersection with the centerline of Sunset Boulevard; 'thence northwesterly along said centerline to its intersection with the southerly prolongation of the easterly line'of Michillinda Avenue; thence northerly along said easterly line "to the point of beginning, said point being the southwesterly corn6r'of Lot 36, Tract 15928:. EXHIBIT "A" -10 - 5290 ....................... 1f .al VIN 7RAM SRI ............... 'w j, � w pl � ^'k -'gg, m 1 ] J,j - - - - - - -- - - --- II t i I v� t � �� .. 7V All, All, { fir r , �' f', t' • ! �'�'fra 1 w r{ `r. q \hi 1 5'�' "fie; � P �._� a I ,i 1 - fl'fl�rt dH �', ttl itlf (5 J� lv�eA�. ,p1ra ' p s e 10 !ti �f- �J� { tis•r � +4 rµi` ,tlf ��:`fMr 1 -� �� AN �- r N j 14 � fi v f II I ' x It •' I tr k r1 1 1III 3r I f I I w d i I'. I Ir 1 �a 1 I t! I y '"• i ' 1 r 1 I I �y'r� {� {i 4 °hf s��l � y?r � `'' � �g � s�i �w 9. sn'..�tnAtT.� �ti rcW� mrc -rc.";m mx��r�m I tt l G k - 1 � j -i' � }l ' '• I 4 - iw 3 I t To I f 1 J l E Vt I} l it r tl� I I I I 5. PUBLIC HEARING 618 Gloria Rd. Mark and Alison Johnson Consideration of an appeal of the Santa Anita Oaks Homeowner's Association's Architectural Review Board's condition of approval requiring that the garage remain in the rear yard for a proposed addition and remodel. The staff report was presented and the public hearing was opened. Prior to receiving the appellant's: testimony, Chairman Olson asked Mr. Lynch, Chairman of the ARB, if public. hearing notices were mailed to all residents within the 100' radius of the subject property based on Reso. 52907 Also, the ARB findings indicate that the actions were taken by 4 committee members; i.e., Beck, Lynch, Seaver and Potter but according to the HOA's Minutes of the May 19 meeting, Mr. Potter is not a member of the ARB. Jack Lynch, 224 Hacienda Dr., said that public hearing notices were sent out. He said that Mr. Potter is and has been on the board. At their annual meetings, Mr. Potter noticed that his name was.not on the list of board members at which time he spoke up and was informed by -Ms. Blackwood that the issue would be investigated. Mr. Potter has been a member of the ARB for many years and is present at all the meetings. He did not know how all of a sudden his name was dropped. He was never asked to step down. He is an asset to the ARB. If there was an election, they were never made aware of it. He , referred back to the noticing issue and said that the ARB did not require the appellant to notify everyone in writing with regard to this issue because the applicant had used the short form review. The applicant's architect was contacted and informed that this remodel was extensive and required the other form. In reply to a question by Commissioner Lucas, Mr. Lynch said that it is the owner's responsibility to notify the neighbors within 100' but they did not do that because they completed the short form review. In answer to a question by Commissioner Wen, Mr. Lynch said that the ARB does not routinely inform the HOA members of their actions but the ARB's actions are filed with the City. Ms. Butler said that their resolution was adopted by the City Council and they must comply with the resolution just like all other City resolutions. Mark Johnson, 618 Gloria Rd., said that the resolution clearly states that they could use the short form. He said that it is very clear that Mr. Potter is not part of the ARB. This house was built in 1951 and they are trying to improve the home. He felt that the remodel would be compatible with the other homes in the area and remarked that none of his neighbors are opposed to it. Thomas Beck, 236 Hacienda, said that he has served on the ARB for at least 10 years. This home should not have gone through the short review process. The short form is for minor projects and this is clearly not a minor project. Ms. Blackwood is the president of the HOA and not a part of the ARB. She moved into the area in 1998. However, Mr. Potter, a long time resident, is a part of the ARB and has been to each and every meeting. They are unclear why his name was not on the ARB list. Based on his experience and his recollection, they have never allowed a garage to be located in the front yard. The ARB felt strongly that the master bedroom should be located in the front of the house and the garage Arcadia City Pla ing Commission 6 10/22/02 ATTACHMENT 6 -p.1 moved to the back. If they allowed this it would set a precedent and others would request it. Neighbors do not want to look at garages which are often left open. They are concerned with the ripple affect of this if it is permitted. Even though there have been 4 homes that have been cited with'having garages in the front, in his opinion, there are only 3 homes out of 30 homes on this street with their garages in the front yard. • He remarked that the ARB is comprised of volunteers who donate their time. In fact, Mr. Lynch has been devoting 1.5 hours a day on ARB issues. ' They are ,looking at what is best for the neighborhood. He felt strongly that they are working within the guidelines provided to them. Their area is a "high end" neighborhood and they do not want garages facing the street.- They are trying to protect the integrity of the neighborhood. In response to a question by Commissioner Baderian, W. Beck could not cite any specific request that was denied with having the'garage in the front yard but.he knew that they have repeatedly denied these types of requests. The ARB felt that other alternatives are available for this lot to rearrange the.plans so the garage is not in the front of the house. Jack Lynch, 224 Hacienda said that it is their responsibility to look at the plans and see what is best for the integrity of the area. There are 35 homes on Gloria and only 3 of them have garages facing the street. They would like to maintain the ambiance of the Oaks: They have denied similar requests in the past. Asa board, they do' not .want to:see this type of a design. He felt they need to have the support of the community and the Planning Commission with their decision. In rebuttal, Mr. Johnson said that Mr. Potter is clearly not a member of the ARB. He felt that two members-of the ARB are trying to push their agenda and their style which he thought was wrong. The resolution indicates that a home shoul&not be garish or excessive and in his opinion the proposed home is neither: He remarked that Mr. Beck's garage faces the street. They are limited with their design and have limitations due to their lot width. No one else-spoke in favor of or in opposition to this item. Chairman Olson closed the public hearing. Commissioner Lucas said that he has served on the ARB in his area and this project would certainly not qualify under the short term review process. He drove in the area and found two homes on the street with garages in the front yard but noticed that these were angled, so the garage: doors did not face the street. The proposal is substantially different from what is in the neighborhood. - He felt there are other alternatives some of which were suggested by the ARB. Although, he did not want to redesign the house, he believed'that the present design could be improved. It was clear to Commissioner Lucas that the Planning Commission has nothing to consider here because the applicant faileddto use the correct form. He felt the parties need,to go back and repeat the process. Chairman Olson wondered if the ARB had a quorum. when they, voted on this issue and if they had the voting right to deny the application Commissioner Baderian said based upon the Minutes of the HOA if appears that Mr.. Potter is not a member of the ARB. Therefore, he questioned whether the action that was taken by the ARB was a legal action Arcadia city Planning Commission - 7 10122/02 ATTACHMENT 6 -p.2 Chairman Olson said that based upon Mr. Lynch's testimony, Mr. Lynch felt that he followed the correct procedures by allowing Mr. Potter to vote. However, it does not appear that Mr. Potter was a part of the ARB. Therefore, would this process tonight be a moot point because the ARB did not act within the time that they should have rendered a decision based upon Reso. 5290? He felt that the appeal is a moot point because they never held a proper meeting. Ms. Butler replied that as mentioned by Chairman Olson, the city is concerned based upon the evidence provided by the HOA that Mr. Potter does not appear to be an ARB member. This is based upon the documents that were submitted to the city. Reso. 5290 clearly states that the majority of the ARB membership must review and approve the request and not the majority of the present ARB members. Even though they acted in good faith, it does not appear that the correct procedure was followed. Based upon the documentation submitted by the president of the HOA and its accuracy, and there is no reason to think that it is not accurate, this process is a moot issue because Mr. Potter is not an ARB member. Thus, there does not appear to be a quorum of membership. She said that even though the applicant should provide the ARB with the envelopes and stamps for the public hearing notices, it is the responsibility of the ARB to mail the notices. The ARB should have advised the applicant that they followed the wrong procedure and should have informed them to use the long form. It is possible that the property owner was not aware that he was to get the names to the ARB. Ms. Butler went on to agree with Chairman Olson regarding this process being a moot issue due to the ARB's failure to act according to Reso. 5290. However, the Planning Commission needs to make that determination; i.e., whether the process was handled correctly. Clearly, this size of an addition would require the long form review process. The HOAs are given latitude and each of them handle these differently. Chairman Olson commented that he felt the ARB has done a good job, however, in this particular case it is unfortunate that the proper procedure was not followed, therefore, it does not leave much of a choice for the Planning Commission in so far as the action that they must take. MOTION It was moved by Chairman Olson, seconded by Commissioner Baderian making the determination that the appeal on the architectural design is moot and the application is deemed approved due to ARB's failure to act on the application within the set time limit. Commissioner Lucas disagreed and did not think that the application and the issue were moot. He felt that they would just be concurring with the basis for the appeal. The Planning Commission is resolving to approve the motion based on the procedural issue, which is issue no. 2. Chairman Olson amended his motion and Commissioner Baderian accepted the change. Commissioner Hsu inquired about the front yard setback and Mr. Kasama replied that an addition could be added regarding the front yard setback. Commissioner Lucas did not think they could do that because if the motion is approved, it would defeat the action of the ARB so all of their actions would be moot. Mr. Kasama noted that a resolution would be forthcoming at the Planning Commission's next meeting. Amadia City Harming Commission 9 10/22/02 ATTACHMENT 6 -p.3 � 0 ROLL CALL: AYES: Commissioners Baderian, Hsu, Wen, Olson NOES: Commissioner Lucas " Chairman Olson noted that there is a five working day appeal period after the adoption of the resolution. The resolution will be adopted on November 12�. Appeals are to be filed by November 20 Arcadia City Planing Commission 9 1022102 ATTACHMENT 6 -p.A RESOLUTION NO. 1682 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING AN APPEAL OF THE SANTA ANITA OAKS HOMEOWNERS' ASSOCIATION'S ARCHITECTURAL REVIEW BOARD'S CONDITIONAL APPROVAL OF A ONE -STORY ADDITION AND REMODEL AT 618 GLORIA ROAD. WHEREAS, on August 12, 2002 Mark and Alison Johnson submitted plans and an application for Architectural Design Review to the Architectural Review Board (ARB) of the Santa Anita Oaks Homeowners' Association (HOA) for a proposed one - story addition and remodel of their residence at 618 Gloria Road; and - WHEREAS, on September 4, 2002 the ARB Chairman issued an approval of the proposed addition and remodel subject to a condition that the garage remain in the rear yard; and . WHEREAS, on September 12, 2002, Mark and Alison Johnson submitted an appeal of the ARB's conditional approval; and WHEREAS, the appeal was based on the architectural aspects of the proposed addition and remodel, and on allegations that the ARB did not render its decision in accordance with the procedures stipulated by City Council Resolution No. 5290; and WHEREAS, a public hearing was held on October 22, 2002 at which time the Planning Commission elicited testimony as to the ARB's procedures and all interested persons were given full opportunity to be heard and to present evidence. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF ARCADIA HEREBY RESOLVES AS FOLLOWS: SECTION 1. That the information submitted by the Development Services Department in the attached reports dated October 22, 2002 is true and correct. SECTION 2. That this Commission finds: 1. That the conditional approval issued by the ARB was not arrived at in accordance with the procedures outlined in City Council Resolution No. 5290. In particular, that a quorum was not present at the meeting at which the ARB considered the proposed addition and remodel as required by Condition 12.e of Section 3 of City Council Resolution No. 5290. ATTACHMENT 7 2. That the proposed addition and remodel is deemed approved because the ARB failed to take action within thirty (30) working days as stipulated by Condition 12.f of Section 3 of City Council Resolution No. 5290. SECTION 3. That for the foregoing reasons this Commission approves the appeal submitted by Mark and Alison Johnson. SECTION 4. , The decision and findings contained in this Resolution reflect the Planning Commission's action of October 22, 2002 by the following vote: AYES: Commissioners Baderian, Hsu, Wen and Olson . NOES: Commissioner Lucas SECTION 5. The Secretary shall certify to the adoption of this Resolution and shall cause a copy to be forwarded to the City Council of the City of Arcadia. I HEREBY CERTIFY that this Resolution No. 1682 was adopted at a regular meeting of the Plan ning.,Commission on November 12, 2002, by the following vote: AYES: Commissioners Baderian, Hsu, Wen and Olson NOES: None ABSENT: Commissioner Lucas Chairman, Planning Commission City of Arcadia ATTE T Secrebry, Planni mmission City of Arcadia APPROVED AS TO FORM: Stephen P. Deitsch, City Attorney City of Arcadia -2- 1682 • t Nov 20 08 02l88p 81aoKwood 626) 688 -933p cRI mjm.2 Nov 2 o 1002 cmoFae cm e�ess�e7i�.gi t.:.e� ttw �odatlow .,�.eadlw�.wb..Mlwdl9Lt'P,QOQ9 �aad� �6o.db/idiPl�& #�t{s .A"df " AwufmMmAwmm� 0644"4 Ntmmber 20.20V CLIENT NAME j6w* w& REND AY: r�'A 81660U43419 *wAwrd w6 FAYDR:. W1 otAtOld{8 7fItfAY's ;ATE, 11j2@10'." woomwe' ow Pimmia$Commi don EBI57E'F; I +ATe: 11r' 2I102' TIME: 19 ^,, * 240 W. Hmdi Ww Drive I;ts ,IFr1G+1 ' A�cUNT A=06 CL 91066 hfFFEAi.. HEAnI�lGF AmievataAw PwWrxs Commboloo, T G T At DUE.: - - -- - The Swt&AmtR 0aW Homcowwm world 1�ko G.ac �# 616tkft Arcadia Ca 91 CK aa: 4594 ( TENGE °- �z1a.Gc Simexl7. \ O /Q�. CfiAP1f r CGG " Ly" Chaitman An PamdmtBledrwoAPraaide t t <D--- -V O L o c� Off, - e�)g` 1 $210.00 s21G.GG ATTACHMENT 8 tn'.1 M:1L ,7.rtv.. nL nom 6tFrf710q9L9:xeA -aNM 818 (INUItS3m v . Il 3 Nov 20 02 02188 B1aokoced 628) 638- 633p tcE 'Dp.a Nov 2 0 2992 CITY OFAR 9 ��^^�� vv ---- ff-- � CIiY 6"44 t oleo~ .�ieadlw �sw�iwM/a6 /9Q9,$GQ9 8P 6rlL.SiP Flo avaaoaood November 20, 2002 The Santa Anita CAM Homowmm Amo"i ,, ,A WOrlld tilCeytp Q �MWAoW e1 618 Gloria Ro Arcadia, Ca. 9100(`,Cv NO: 4504 TENrEY : r, f.zl<<.a0 Siooeroty, (: iD�. , CHANf� ..oc 7 . 1 1 -IEN7 f7AMCI AMW WA"m „era.- ,JµC „v 7far�nldar.G PAYCIR: TODAY' DATE: 11/26/32 Ch ofAtc & Y REGISTER DATE: IIM U[ ID�pf' PlanninY Commission .91oglay 240 W. Hantimpon Drive i_ CRIPTILIN IN ArcaNa, Ca. 91066 A "rFEAL NE WINOS b'16.G0 A Ao &Aktdw --- -- - - - - -: - - -- Pain8 Cmn nisston, an TOTAL DUE: 'L O.K Jock Lynch, Chairman ARB Pamela Blackwood, Pimiidemt 't c� ` o 10'd SOLI M OZ AcN 6VI9IO£9Z9:xpd -GNO7 &b GNtIMM • -_. , , ,. ,, `) .. p NaJ+.P �i �. � ..� �. � .� � :'n q .( n. .. ...i tom_ \.'..i P. i6 "' -. .. ^!.. i � .. �. . �1> .. ..... .. '.�3.