Agenda Packet 2003-12-09
CITY COUNCIL Citt of
AGENDA ArrO!o Grande
Tony M. Ferrara Mayor .
Jim Dickens Mayor Pro Tem Steven Adams City Manager
Thomas A. Runels Council Member Timothy J. Carmel City Attomey
Sandy Lubin Council Member . Kelly Wetmore Director, Administrative Services
Joe Costello Council Member
NOTICE OF
CITY COUNCIL SPECIAL MEETING
Tuesday
December 9. 2003
6:15 P.NL
Arroyo Grande City Council Chambers
215 East Branch Street, Arroyo Grande
AGENDA
1. ROLL CALL
2. PUBLIC COMMENT on Special Meeting Agenda Items.
Members of the public wishing to address the Council on any item described in this Notice
may do so when recognized by the Presiding Officer.
3. CITY COUNCIL CLOSED SESSION:
a. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION pursuant to
Government Code Section 54956.9 (a):
Name of Case: Vanderveen et al vs. City of Arroyo Grande et al
San Luis Obispo County Superior Court Case No. CV 031144
b. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION
Initiation of Litigation pursuant to Government Code Section 54956.9 (c): one (1)
potential case.
4. RECONVENE TO OPEN SESSION:
Announcement of reportable action from closed session, if any.
5. ADJOURNMENT.
c:closedsession ,agenda.120903.
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CITY COUNCIL Citt of
AGENDA Arroto Grande
Tony M. Ferrara Mayor
Jim Dickens Mayor Pro Tem Steven Adams City Manager
Thomas A. Runels Council Member Timothy J. Carmel City Attorney
Sandy Lubin Council Member Kelly Wetmore Director, Administrative Services
Joe Costello Council Member
AGENDA SUMMARY
CITY COUNCIUREDEVELOPMENT AGENCY
TUESDAY, DECEMBER 9, 2003
7:00 P.M.
Arroyo Grande City Council Chambers
215 East Branch Street, Arroyo Grande
1. CALL TO ORDER: 7:00 P.M.
2. ROLL CALL COUNCIURDA
3. FLAG SALUTE: ARROYO GRANDE LIONS CLUB
4. INVOCATION: PASTOR PAUL JONES
5. SPECIAL PRESENTATIONS:
5.a. Presentation of Medal of Merit for Seraeant John Allen
5.b. Mayor's Commendation Recoanizina Eddie EI-Helou
6. AGENDA REVIEW:
6a. Move that all resolutions and ordinances presented tonight be read in title only and
all further readings be waived.
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AGENDA SUMMARY - DECEMBER 9, 2003
PAGE 2
7. COMMUNITY COMMENTS AND SUGGESTIONS:
This public comment period is an invitation to members of the community to present
issues, thoughts, or suggestions on matters not scheduled on this agenda.
Comments should be limited to those matters that are within the jurisdiction of the
City Council. The Brown Act restricts the Council from taking formal action on
matters not published on the agenda. In response to your comments, the Mayor or
presiding Council Member may:
. Direct City staff to assist or coordinate with you.
. A Council Member may state a desire to meet with you.
. It may be the desire of the Council to place your issue or matter on a future
Council agenda.
Please adhere to the following procedures when addressing the Council:
. Comments should be limited to 3 minutes or less.
. Your comments should be directed to the Council as a whole and not directed
to individual Council members.
. Slanderous, profane or personal remarks against any Council Member or
member of the audience shall not be permitted.
8. CONSENT AGENDA:
The following routine items listed below are scheduled for consideration as a group.
The recommendations for each item are noted. Any Council Member may request
that any item be withdrawn from the Consent Agenda to permit discussion or change
the recommended course of action. The City Council may approve the remainder of
the Consent Agenda on one motion.
8.a. Cash Disbursement Ratification (SNODGRASS)
Recommended Action: Approve the listing of cash disbursements for the period
November 16, 2003 through November 30, 2003.
8.b. Statement of Investment Deposits (SNODGRASS)
Recommended Action: Receive and file the report of current investment deposits
as of November 30, 2003.
8.c. Consideration of Annual Financial Report - FY 2003-03 Receipt and Use of
Water and Sewer Development Fees (SNODGRASS)
Recommended Action: Accept and file the annual report of the receipt and use of
water and sewer development fees and charges in compliance with Government
Code Section 66013.
8.d. Consideration of EmDlovment Aareement: Citv Manaaer (CARMEL)
Recommended Action: Approve the Employment Agreement between the City of
Arroyo Grande and Steven Adams and authorize an appropriation of $2,903 from the
General Fund.
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AGENDA SUMMARY - DECEMBER 9, 2003
PAGE 3
8. CON'SENT AGENDA (continued):
8.e. Consideration of Award of Contract for the Crown Hill Sewer Linina Proiect.
PW 2003-06 (SPAGNOLO)
Recommended Action: 1) Find that the project is categorically exempt from CEQA
pursuant to Section 15301 (e); 2) Direct the Director of Administrative Services to file
a Notice of Exemption; 3) Award a contract for the Crown Hill Sewer Lining Project to
Sancon Technologies, Inc. in the amount of $64,860.00; 4) Authorize the City
Manager to approve change orders not to exceed the contingency of $6,486.00 for
use only if needed for unanticipated costs during the construction phase of the
project; and, 5) Direct staff to issue the Notice of Award and Notice to proceed with
other necessary contract documents.
8.1. Consideration of Adoption of Ordinance - Development Code Amendment 03-
005 (STRONG)
Recommended Action: Adopt Ordinance amending Title 16 of the Arroyo Grande
Municipal Code (DCA 03-005) to incorporate regulations and amending the Zoning
Map to create an Agricultural Preservation Overlay District of 100 feet around
agriculturally zoned properties for the purposes of agricultural buffers, requiring
adequate findings for subdivision or rezoning of agricultural lands, implementing
mitigation requirements and revising land use regulations for all agricultural districts.
8.g. Consideration of Adoption of Ordinance - Development Code Amendment 02-
002 - Amendina the Zonina Map for ProD8rtv Located on Farroll Avenue:
Applicant: Don McHaney (STRONG)
Recommended Action: Adopt Ordinance amending the Zoning Map and Planned
Development 1.5 for property located on Farroll Avenue.
8.h. Consideration of APproval of Final Parcel Map AG 03-0111: Subdividina One
(1) Parcel Into Two (2) Parcels: 159 Pine Street (SPAGNOLO)
Recommended Action: Approve Final Parcel Map AG 03-0111, subdividing 0.35
acres into two (2) lots.
9. PUBLIC HEARINGS:
9.a. Consideration of Ordinance Amendina the Redevelopment Plan to Extend the
Time Limit of the Redevelopment Plan by One Year (ADAMS)
[COUNCIURDA]
Recommended Action: Introduce Ordinance amending the Redevelopment Plan to
extend the term of the Plan by one year.
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AGENDA SUMMARY - DECEMBER 9, 2003
PAGE 4
9. PUBLIC HEARINGS (continued):
9.b. Continued Public Hearina - Consideration of Development Code Amendment
03-006 - Proposed Ordinance Amendina the Zonina MaD and Portions of Title
16 of the Arroyo Grande Municipal Code for the Traffic Way and Station Wav
Area (STRONG)
Recommended Action: Introduce Ordinance amending portions of Title 16 of the
Arroyo Grande Municipal Code (Development Code Amendment 03-006), rezoning a
portion of the Highway Commercial, General Commercial and Village Mixed Use
Districts to Traffic Way Mixed Use; and Establishing Design Guidelines and
Standards for Design Overlay District D-2. 11 .
10. CONTINUED BUSINESS:
None.
11. NEW BUSINESS:
11.a. Consideration of Selection of Council Member Lubin as Mayor Pro Tem
(ADAMS)
Recommended Action: Appoint Council Member Lubin as Mayor Pro Tem for the
next one-year period.
11.b. Consideration of Proposed Disposition and Development Aareement With
Courtland-Arroyo Grande. L.P. (ADAMS)
[CQUNCIURDA[
Recommended Action: Adopt Resolution approving the proposed Disposition and
Development Agreement (DDA) with Courtland-Arroyo Grande, L.P.
11.c. Consideration of Invitation from the City of Grover Beach to Participate in a
One-Dav Joint Meetina Reaardina Potential Consolidation of Police Services
(ADAMS)
Recommended Action: Review the invitation received from the City of Grover
Beach to participate in a facilitated joint City Council meeting to investigate interest
in consolidation of Police services and provide direction to staff.
11.d. Consideration of Discussion and Public Comment Reaardina Diablo Canyon
Nuclear Power Plant and Consideration of Resolution Callina Upon the Nuclear
Reaulatory Commission (NRC) to Review with Great Care anv Llcensina
Proposals Submitted for the Diablo Canyon Nuclear Power Plant (ADAMS)
Recommended Action: Receive public comment regarding issues related to the
Diablo Canyon Nuclear Power Plant and consider adoption of a Resolution.
11.e. Consideration of Desianation of Intearated Waste Manaaement Local
Enforcement Aaencv (LEA) (ADAMS)
Recommended Action: Provide direction to staff regarding designation of the Local
Enforcement Agency (LEA) for integrated waste management.
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AGENDA SUMMARY - DECEMBER 9, 2003
PAGE 5
12. CITY COUNCIL MEMBER ITEMS:
The following item(s) are placed on the agenda by a Council Member who would like
to receive feedback, direct staff to prepare information, and/or request a formal
agenda report be prepared and the item placed on a future agenda. No formal
action can be taken.
a) None.
13. CITY MANAGER ITEMS:
The following item(s) are placed on the agenda by the City Manager in order to
receive feedback and/or request direction from the Council. No formal action can be
taken.
a) None.
14. COUNCIL COMMUNICATIONS:
Correspondence/Comments as presented by the City Council.
15. STAFF COMMUNICATIONS:
Correspondence/Comments as presented by the City Manager.
16. COMMUNITY COMMENTS AND SUGGESTIONS:
This public comment period is an invitation to members of the community to present
issues, thoughts, or suggestions. Comments should be limited to those matters that
are within the jurisdiction of the City Council. The Brown Act restricts the Council
from taking formal action on matters not published on the agenda.
17. ADJOURNMENT
+++++++++++
All staff reports or other written documentation relating to each item of business referred to
on the agenda are on file in the Administrative Services Department and are available for
public inspection and reproduction at cost. If requested, the agenda shall be made
available in appropriate alternative formats to persons with a disability, as required by the
Americans with Disabilities Act. To make a request for disability-related modification or
accommodation, contact the Administrative Services Department at 805-473-5414 as soon
as possible and at least 48 hours prior to the meeting date.
+++++++++++
Note: This agenda is subject to amendment up to 72 hours prior to the date and time set
for the meeting. Please refer to the agenda posted at City Hall for any revisions, or call the
Director of Administrative Services at (805) 473-5414 for more information.
www.arrovoarande.ora
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5.b.
OF
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'~CA L .'FO R N. A
-~~
a or.s Commendation
9?resmtedto
<fddit (f(-<Hdou
qn ~cognition of Outstanding <Efforts in Organizing Ute
grirst ArrCYfo Grande Christmas ~arade and
Contributions &r award Coordinating
OUter COi((age <Events, Activities, and 'Beautification.
. g)ated tftis 9th cia! of q)ecem&er, 2005
~ otrt ~ ~ara, 9feor
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5.8.
OF
--- ~/ /
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I '
'IUCALIFOR~
.~~~
Honorary 1tesoCution
.:Awardine '11ie Pofice 1)epartment's
~etfa( Of ~erit 'I'o Sergeant John .:AlIen
WHEREAS, in January 2000, Sergeant John Allen attended a seminar on "Death In the line of Duty" sponsored by the
Concems of Police Survivors (COPS) organization and the National Institute of Justice; and
WHEREAS, upon retuming to work, Sergeant Allen discovered there was no organized support group or program to
assist the family of a law enforcement member in time of crisis; and
WHEREAS, Sergeant Allen then Initiated an effort to determine if there was an interest in developing a formal support
program for such assistance by law enforcement administrators, law enforcement rank and file organizations, and key
stakeholders within the private sector in San Luis Obispo County; and
WHEREAS, upon determining there was an interest in such a program, Sergeant Allen became the "driving force"
which, in 2001, lead to the creation of the San Luis Obispo Law Enforcement Assistance Fund (SLOLEAF), to Include I
the development of the structure for the govemlng body for the Fund, development of the bylaws, rules, regulations
and guidelines by which the Fund operates, and In the raising of monies for the Fund; and
WHEREAS, due to Sergeant Allen's tireless efforts, SLOLEAF has become a viable and successful program and has
been called upon to support several families of law enforcement members who suffered serious Illnesses, injury and/or
death; and
WHEREAS, Sergeant Allen has additionally assisted in developing a protocol for the Paso Robies Public Safety
Memorial and he has assisted law enforcement agencies In conducting formal funerals/memorial services; and
WHEREAS, Sergeant Allen's self-initiated and voluntary efforts in these activities, much of which was done on his own
time and without compensation, demonstrated meritorious conduct significantly beyond the expectations for his
position and has resulted in a definite positive Impact on all law enforcement agencies, Including their members and
families, in San Luis Obispo County; and
WHEREAS, It is the desire of the City Council to recognize Its employees for meritorious conduct.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Arroyo Grande, upon recommendation of the
~~.... _of Merit to Sergeont_AIIen thi... day 01_2003,
~ ,
Tony M. F , Mayor Rick TerBorch, Chief of Police
Jim Dickens, Mayor Pro Tem ~ Manager
~vJL~
Thomas A. Runels, Council Member Kelly m re, Administrative
Services Director/Deputy City Clerk
Sandy Lubin, Council Member
Joe Costello, Council Member
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8.a.
MEMORANDUM
TO: CITY COUNCIL
FROM: LYNDA K. SNODGRASS, DIRECTOR OF FINANCIAL SERVICE~
BY: JANET M. HUWALDT, ACCOUNTING SUPERVISOq <:::
SUBJECT: CASH DISBURSEMENT RATIFICATION
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council ratify the attached listing of cash disbursements for
the period November 16- November 30, 2003.
FUNDING:
There is a $483,767.78 fiscal impact. All payments are within the existing budget.
DISCUSSION:
The attached listing represents the cash disbursements required of normal and usual
operations. It is requested that the City Council approve these payments.
AL TERNA TIVES:
The following alternatives are provided for the Council's consideration:
. Approve staffs recommendation;
. Do not approve staffs recommendation;
. Provide direction to staff.
Attachments:
Attachment 1 - Cash Disbursement Listing
Attachment 2 - November 21, 2003 Accounts Payable Check Register
Attachment 3 - November 28, 2003 Accounts Payable Check Register
Attachment 4 - November 28, 2003 Payroll Checks and Benefit Checks
A IT ACHMENT 1
CITY OF ARROYO GRANDE
CASH DISBURSEMENTS
7M de 1'tNMi ~~ 16 7~~ 30, 2003
December 9, 2003
Presented are the cash disbursements issued by the Department of Financial Services for
the period November 16 to November 30, 2003. Shown are cash disbursements by week of
occurrence and type of payment.
WEEK TYPEOFPAYMENT .... ATIACHMENT. AMOUNT
November 21, 2003
Accounts Payable Cks 113183-113302 2 $115,952.55
November 28, 2003
Accounts Payable Cks 113303-113367 3 38,937.49
Payroll Checks and Benefit Checks 4 328,877.74
367,815.23
Two Week Total $ 483.767.78
CITY OF ARROYO GRANDE
INDEX FOR BUDGET DEPARTMENTS
EDEN COMPUTER SYSTEM
GENERAL FUND (010) SPECIAL REVENUE FUNDS
City Government (Fund 010) Park Development Fee Fund (Fund 213)
4001 - City Council 4550 - Park Development Fee
4002 - Administrative Services Traffic Signal Fund (Fund 222)
4003 - City Attorney 4501 - Traffic Fund
4101 - City Manager Transportation Fund (Fund 225)
4102 - Printing/Duplicating 4553 - Public Transit System
4120 - Financial Services Construction Tax Fund (Fund 230)
4121 - Taxes/ Insurance/ Bonds 4556 - Construction Tax
4130 - Community Development Police Grant Funds
4131 - Community Building (CDBG) 4201 - Law Enforcement Equip. (Fd 272)
4140 - Management Information System 4202 - State AB3229 Cops Grant (Fd 271)
4145 - Non Departmental 4203 - Federal Universal Hiring (Fd 274)
Public Safety (Fund 010) 4208 - Federal Local Law Enforcmt (FD 279)
4201 - Police Redevelopment Agency ( Fund 284)
4211 - Fire 4103 - Redevelopment Administration
4212 - Building & Safety ENTERPRISE FUNDS
Public Works (Fund 010) Sewer Fund (Fund 612)
4301 - Public Works-Admin & Engineering 4610 - Sewer Maintenance
4303 - Street/Bridge Maintenance Water Fund (Fund 640)
4304 - Street lighting 4710 - Water Administration
4305 - Automotive Shop 4711 - Water Production
Parks & Recreation (Fund 010) 4712 - Water Distribution
4420 - Parks Lopez Administration (Fund 641)
4421 - Recreation 4750 - Lopez Administration
4422 - General Recreation CAPITAL IMPROVEMENT PROGRAMS (Fund 350)
4423 - Pre-School Program 5501-5599 - Park Projects
4424 - Recreation-Special Programs 5601-5699 - Streets Projects
4425 - Children in Motion 5701-5799 - Drainage Projects
4426 - Five Cities Youth Basketball 5801-5899 - Water/Sewer/Street Projects
4430 - Soto Sport Complex 5901-5999 - Water Projects
4213 - Government Buildings
4460 - Parkway Maintenance
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I.b.
MEMORANDUM
TO: CITY COUNCIL
FROM: LYNDA K. SNODGRASS, DIRECTOR OF FINANCIAL SERVICES ~
BY: JANET M. HUWALDT, ACCOUNTING SUPERVISO~
SUBJECT: STATEMENT OF INVESTMENT DEPOSITS
DATE: DECEMBER 9, 2003
Attached please find a report listing the current investment deposits of the City of Arroyo
Grande, as of November 30,2003, as required by Government Code Section 53646 (b).
.
.....I__...._...'~-~TT .... "I1L.I1I .~.._ ~_..~_.--r--..._~._~-_..- -- -=
CITY OF ARROYO GRANDE
MONTHLY INVESTMENT REPORT
,,44, ~~ 30, 2003
~ " ~ ~"
December 9, 2003
This report presents the City's investments as of November 30, 2003. It includes all
investments managed by the City, the investment institution, type of investment,
maturity date, and rate of interest. As of November 30, 2003, the investment portfolio
was in compliance with all State laws and the City's investment policy.
Current Investments:
The City is currently investing all short-term excess cash in the Local Agency
Investment Fund (LAIF) administered by the State Treasurer. This is a very high
quality investment in terms of safety, liquidity, and yield. The City may readily
transfer the LAIF funds to the City's checking account when funds are needed. At this
time, the City does not hold any other investments. The following is a comparison of
investments based on book values as of November 30, 2003 compared with the prior
month and the prior year.
LAW INVESTMENT 01 .:.1 PRIOR MONTH PRIOR YEAR
Date: November 2003 October 2003 November 2002
Amount: $12,300,000 11,900,000 12,700,000
Interest Rate: 1.59% 1.63% 2.49%
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__'_"__'_."_'A_._,_,__,._,_,..~_____
I.c.
MEMORANDUM
TO: CITY COUNCIL
FROM: LYNDA K. SNODGRASS, DIRECTOR OF FINANCIAL SERVICES t;l
SUBJECT: CONSIDERATION OF ANNUAL FINANCIAL REPORT - FISCAL YEAR
2002-03 RECEIPT AND USE OF WATER AND SEWER DEVELOPMENT
FEES/CHARGES
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council accept and file the annual report of the receipt and
use of water and sewer development fees and charges in compliance with Government
Code Section 66013.
FUNDING:
No outside funding is required.
DISCUSSION:
Government Code Section 66013 requires that within one hundred and eighty days of
the close of the fiscal year, a financial accounting of the transactions dealing with water
and sewer development fees and charges shall be made available to the public.
The basic accounting and reporting responsibilities under the Government Code require
the following:
1. A description of the charges deposited in the fund;
2. The beginning and ending balance of the fund and any interest earned from
investment of moneys in the fund;
3. The amount of charges/fees collected in the fiscal year;
4. The public improvements on which charges were expended;
5. The percentage of the total cost of the public improvements that was funded by
these charges;
6. The completed public improvements on which charges were expended;
7. Each public improvement that is anticipated to be undertaken in the current fiscal
year.
Attached to this staff report is the financial information (Attachment A) as required by
Government Code Section 66013 as of June 30, 2003. The information consists of
beginning and ending fund balances for each fee charged by the City, including interest
earned, and details of all expenditures made from these sources. The information
provided is consistent with the financial records. Pursuant to Government Code Section
66013, this report is for review purposes only.
ATTACHMENT A
CITY OF ARROYO GRANDE
Water and Sewer Development Fees and Charges
Sewer Facility Transfers
Fiscal Year 2002-03 Completed Work Transfers % of Project % Complete
Infrastructure Inventory $ 10,000 11% 92%
Grand Avenue-Elm to Oak Park Boulevard 10,000 8% 10%
Total Capital Transfers $ 20,000
Fiscal Year 2003-04 Current Projects Allocation % of Project
Newsom Springs Drainage Project 137,632 29%
Sewer Lift Station NO.1 463,000 100%
Crown Hill/East Branch Street Sewer Repairs 75,000 100%
Grand Avenue-Phase III 32,368 41%
Newsom Springs Drainage 137,632 29%
Total Funding for Current Projects $ 708,000
CITY OF ARROYO GRANDE
Water and Sewer Development Fees and Charges
Water Facility Transfers
Fiscal Year 2003-04 Current Projects Transfers % of Project
Reservoir NO.6 Construction $ 69,400 75%
Reservoir No. 1 Replacement 683,900 30%
Pressure Zone Connection 273,000 56%
Oro Booster Station Upgrade 37,000 100%
Total Funding for Current Projects $ 1,063,300
.
-- ~ -~--
CITY COUNCIL
WATER AND SEWER DEVELOPMENT FEES-ANNUAL REPORT
DECEMBER 9, 2003
PAGE 2
The City utilizes fund accounting to segregate development related fees from other City
revenues. Although the City pools its cash for investment purposes, interest income is
allocated to the facility funds based on their respective cash balances.
The City accounts for water and sewer development charges in three separate funds,
the Water Facility Fund, th,e Sewer Facility Fund, and the Lopez Facility Fund. The
information in Attachment A is presented in a format consistent with the annual audit of
the Fiscal Year July 1, 2002 to June 30, 2003.
The following is a description of the City funds used to track water and sewer
development related fees:
. Water Facility (Fund 642)
Water Main Charges and Distribution Charges, enacted pursuant to the provision of
Section 6-7.22 of the City Municipal Code, are accounted for in the Water Facility
Fund. These revenues are to be used for future water infrastructure improvements.
. Sewer Facility (Fund 634)
Sewer Facility revenue, enacted pursuant to the provision of Section 6-6.409 of the
City Municipal Code, is collected to help pay for improvements and future sewer
system capacity as necessary to meet the needs of the City resulting from growth
and expansion.
. Lopez Facility Fund (Fund 241)
This fund is used to account for the accumulation of water availability charge
revenues. This revenue was enacted pursuant to the provision of Section 38743 of
the Government Code, and Section 6-7.22 of the City Municipal Code.
AL TERNA TIVES:
The following alternatives are provided for City Council consideration:
- Approve staff recommendation and accept the report;
- Do not accept staff recommendation;
- Modify staff recommendation and approve;
- Provide direction to staff.
Attachment:
A. Water and Sewer Development Fees and Charges
,-..,'-",',_,_._"__v_..",_~~"._,"_
ATTACHMENT A
CITY OF ARROYO GRANDE
Water and Sewer Development Fees and Charges
Statement of Revenues, Expenditures and Changes in Fund Balances
Fiscal Year Ended June 30,2003
Sewer Water Lopez
Facility Facility Availability
Revenues:
Interest Income $ 3,705 $ 25,686 $ 21,976
Sewer Facility Charges 60,276
Water Main Charges 9,310
Distribution Charges 150,254
Water Availability Charges 127,950
Deer Trail Well Mitigation Fee
Total Revenues 63,981 185,250 149,926
Expenditures
Operating Expenses - - -
Excess of Operating Revenues Over
Operating Expenditures 63,981 185,250 149,926
Other Financing Uses
Prior Period Adjustments
Capital Transfers Out 20,000 - -
20,000 - -
Excess of Revenues Over
(Under) Expenditures and
Other Financing Uses 43,981 185,250 149,926
Fund Balance, Beginning of Year 932,467 2,047,701 900,154
Fund Balance, End of Year $ 976,448 $ 2,232,951 $ 1,050,080
~
. ----.-'--- --~~'"-"'---"'-'--'--~'.--"'- ----"'-->.-_--, .-- "--+.- JI"
8.d.
MEMORANDUM
TO: CITY COUNCIL
FROM: TIMOTHY J. CARMEL, CITY ATTORNE~
SUBJECT: CONSIDERATION OF APPROVAL OF EMPLOYMENT
AGREEMENT
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council approve the attached revised Employment
Agreement between the City of Arroyo Grande and Steven Adams and authorize
an appropriation of $2,903 from the General Fund.
FUNDING:
Approval of the Agreement will result in an additional expenditure to the General
Fund of $2,903 in FY 2003-04. The expected Fund Balance of the General Fund
at June 30, 2004 will be $2,578,900 if the additional appropriation is approved.
DISCUSSION:
Based on the mutual agreement of the Council and City Manager, the terms and
conditions of the City Manager's Employment Agreement have been revised to
reflect the two and one-half percent (2%%) cost of living adjustment approved for
Management employees.
AL TERNA TIVES:
The following alternatives are provided for the Council's consideration:
- Approve Employment Agreement;
- Do not approve Employment Agreement;
- Provide direction to staff.
Attachment
1. Employment Agreement
Attachment 1
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into this 9th day of December , 2003,
by and between the CITY OF ARROYO GRANDE, a municipal corporation of the State
of California (the "City"), and STEVEN D. ADAMS, an individual (the "Employee"), bC?th
of whom understand as follows:
WITNESSETH:
,
WHEREAS, City desires to continue to employ the services of Employee as the City
Manager as provided by State law and the Arroyo Grande Municipal Code; and
WHEREAS, it is the desire of City to establish certain conditions of employment and to
set working conditions of Employee; and
WHEREAS, it is the desire of City to (a) secure and retain Employee and to provide
inducement for him to remain in such employment; (b) to make possible full work
productivity by assuring Employee's morale and peace of mind with respect to future
security; (c) to act as a deterrent against malfeasance or dishonesty for personal gain
on the part of Employee; (d) to provide a just means for terminating Employee's
services at such time as he may be unable to fully discharge his duties or when City
may desire to otherwise terminate his employment; and
WHEREAS, Employee desires to continue employment as City Manager of City; and
WHEREAS, this Agreement shall supersede and replace the previous Agreement
between the parties dated November 26, 2002.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties agree as follows:
Section 1: Term.
A. City hereby agrees to continue to employ Employee as City Manager for an
. indefinite term.
B. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right
of Employee to resign at any time from his position with City, subject only to the
provision set forth in Section 5, Paragraph A., of this Agreement.
-
_ .H'...._.~,____.__,.,,__"_
EMPLOYMENTAGREEMENT-STEVEND.ADAMS
PAGE 2
C. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right
of the City Council to terminate the' services of Employee at any time, with or
without good cause, subject only to the provisions set forth in Section 5,
Paragraphs 8. and C., of this Agreement.
D. Except as otherwise specified herein, Employee agrees to remain in the
exclusive employment of City and not become employed by any other employer
until a termination date is effected as hereinafter provided.
Section 2: Duties.
City hereby agrees to employ Employee as City Manager to perform the functions and
duties specified in the Arroyo Grande Municipal Code and as provided by State and
Federal law and to perform other legally permissible and proper duties and functions as
the City Council shall from time to time assign.
Section 3: Salary.
City agrees to pay Employee for his services rendered pursuant hereto an annual base
salary of $119,037, payable in equal installments at the same time as other employees
of City are paid.
Section 4: Performance Evaluation.
City agrees to increase the base salary and/or other benefits of Employee in such
amounts and to such extent as the City Council may determine that it is desirable to do
so on the basis of an annual performance evaluation which shall occur no later than the
end of October of each year.
The petformance evaluation shall be in accordance with specific criteria developed
jointly by the City Council and Employee. Such criteria may be added to or deleted as
the City Council may from time to time determine in consultation with Employee.
.
_..~._v._"_~__""",,,..._
EMPLOYMENT AGREEMENT - STEVEN D. ADAMS
PAGE 3
Section 5. Resignation and Termination.
A. In the event Employee voluntarily resigns his position with City, Employee shall
give City forty-five (45) days written notice in advance, unless the parties
otherwise agree. Should Employee fail to give such period of notice, then
Employee shall pay to City as liquidated damages the sum of $40 per working
day for the difference between the number of actual days of prior notice and
forty-five (45) days.
B. In the event Employee is terminated by the City Council during such time that
Employee is willing and able to perform his duties under this Agreement, then, in
that event, City agrees to pay Employee a lump sum cash payment equal to six
(6) months salary and benefits (limited to the following: PERS, Medical, Dental,
and Vision). In the event Employee is terminated for good cause, then City shall
have no obligation to pay the sum designated in this paragraph. For the purpose
of this Agreement, "good cause" shall include, but not necessarily be limited to,
any of the following:
(1 ) A material breach of the terms of this Agreement;
(2) Misfeasance;
(3) Malfeasance;
(4) A failure to perform his duties in a professional and responsible manner
consistent with generally accepted standards of the profession;
(5) Conduct unbecoming the position of City Manager or likely to bring
discredit or embarrassment to City.
"Good cause" shall not mean a mere loss of support or confidence by a majority of the
Council.
,
-~---,-
--~~-,--..,,","-,--.-
EMPLOYMENT AGREEMENT - STEVEN D. ADAMS
PAGE 4
C. In the event City at any time during this Agreement reduces the salary or other
financial benefits of Employee in a greater percentage than an applicable across-
the-board reduction for all employees of City, or in the event City refuses,
following written notice, to comply with any other provision benefiting Employee
herein, or Employee resigns following a formal suggestion by the City Coun'cil
that he resign, then, in that event, Employee may, at his option, be deemed to be
"terminated" at the date of such reduction or such refusal to comply, within the
meaning and context of Paragraph B. above.
Section 6: Outside Professional Activities.
Employee, with prior written approval of the City Council, may undertake outside
professional activities for compensation, including consulting, teaching, speaking, and
writing provided such activities do not interfere with Employee's normal duties and are
not done with any existing vendors or contractors of City. Under no circumstances shall
such outside activities create a conflict of interest with the duties of Employee and the
interests of City.
Section 7: Suspension.
City may suspend Employee with full pay and benefits at any time during the term of
this Agreement.
Section 8: Fringe Benefits.
City shall pay the Employee's cost for fringe benefits, including cost for dependents
where applicable. Fringe benefits shall include, but not be limited to, medical, dental,
vision, life insurance, long-term disability, contribution to International City Management
Association deferred compensation plan and participation in the Public Employees'
Retirement System.
Section 9: Annual Leave.
. Employee shall be subject to the "Annual Leave" provisions of the City Personnel
Regulations (Section XII.A.1.) with the following modifications:
Employee shall accumulate Annual Leave at a rate as designated in Section XII.A.1.a.3.
of the City Personnel Regulations.
-- ~- -
-<I" - _._ __~"___..."..__
EMPLOYMENT AGREEMENT - STEVEN D. ADAMS
PAGE 5
Section 10: Automobile.
Employee shall provide his own automobile. City shall provide Employee a $400
monthly automobile allowance. Employee shall receive no reimbursement for travel
mileage within a fifty (50) mile radius of City; for any required City travel mileage outside
the fifty (50) mile radius, Employee shall be reimbursed for mileage at the rate as set
forth by the City Council.
Section 11: Physical Examination.
Employee may receive an annual physical examination at City's expense.
Section 12: Other Terms and Conditions of Employment.
City, in consultation with Employee, shall fix, in writing, any such other terms and
conditions of employment, as it may determine from time to time, relating to the
performance of Employee, provided such terms and conditions are not inconsistent with
or in conflict with the provisions of this Agreement, the Arroyo Grande Municipal Code,
or any applicable State or Federal law.
Section 13: Notices.
Notices pursuant to this Agreement shall be given by deposit in the custody of the
United States Postal Services, postage prepaid, addressed as follows:
EMPLOYER: City of Arroyo Grande
P. O. Box 550
Arroyo Grande, CA 93421-0550
EMPLOYEE: Steven D. Adams
1597 Chilton Street
Arroyo Grande, CA 93420
Alternatively, notices required pursuant to this Agreement may be personally served in
, the same manner as is applicable to civil judicial practice. Notice shall be deemed
given as of the date of personal service or as of the date of deposit of such written
notice in the course of transmission in the United States Postal Service.
-------'
..---.-<~<---'-'~ -
EMPLOYMENT AGREEMENT - STEVEN D. ADAMS
PAGE 6
Section 14: General Provisions.
The text herein shall constitute the entire agreement between the parties. Any
amendments to this Agreement must be in writing and executed by both parties.
This Agreement shall be binding upon and inure to the benefit of the heirs at law and
executors of Employee.
This Agreement shall become effective commencing , December -1L., 2003. If any
provision, or any portion thereof, contained in this Agreement is held unconstitutional,
invalid, or unenforceable, the remainder of this Agreement, or portion thereof, shall be
deemed severable, shall not be affected, and shall remain in full force and effect. .
IN WITNESS WHEREOF, the City of Arroyo Grande has caused this Agreement to be
signed and executed in its behalf by its Mayor, and duly attested by its Director of
Administrative Services/Deputy City Clerk, and Employee has signed and executed this
Agreement, both in duplicate, the day and year first above written.
.
EMPLOYMENT AGREEMENT - STEVEN D. ADAMS
PAGE 7
EMPLOYEE:
STEVEN D. ADAMS
EMPLOYER:
CITY OF ARROYO GRANDE
By:
TONY M. FERRARA, MAYOR
ATTEST:
KELL Y WETMORE
DIRECTOR OF ADMINISTRATIVE SERVICES!
DEPUTY CITY CLERK
APPROVED AS TO FORM:
LYON & CARMEL
By:
TIMOTHY J. CARMEL
CITY ATTORNEY
.
8.e.
MEMORANDUM
TO: CITY COUNCIL
FROM: DON SPAGNOLO, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER ~
SUBJECT: CONSIDERATION OF AN AWARD OF CONTRACT FOR CROWN HILL
SEWER LINING PROJECT, PW 2003-06
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council:
A. find that the project is categorically exempt from CEQA pursuant to Section
15301 (e);
B. direct the Director of Administrative Services to file a Notice of Exemption;
C. award a construction contract for the Crown Hill Sewer Lining Project, PW 2003-06
to Sancon Technologies, Inc., in the amount of $64,860.00;
D. authorize the City Manager to approve change orders not to exceed the contingency
of $6,486.00 for use only if needed for unanticipated costs during the construction
phase of the project (total construction costs = $64,860.00 + $6,486.00 =
$71,346.00); and
E. direct staff to issue the Notice of Award and Notice to Proceed with other necessary
contract documents.
FUNDING:
The FY 2003/04 Capital Improvement Program budget includes $75,000 for the
construction phase of the Crown Hill Sewer Lining Project, PW 2003-06 which is funded
from the Sewer Facility Fund. At the end of the FY 2003-04, the Sewer Facility Fund is
expected to have a fund balance of approximately $273,450.
- ---------
.....,..""...,,;,.,..-...---.-.."--
CITY COUNCIL
CONSIDERATION OF THE CROWN HILL SEWER LINING PROJECT, PW 2003-06
DECEMBER 9, 2003
PAGE 2
DISCUSSION:
The scope of work involves the rehabilitation of approximately 800' of sewer pipe on Crown
Hill and 500' of sewer pipe on East Branch Street by the installation of a resin-impregnated
flexible tube, which is tightly formed to the original sewer pipe. The new sewer lining will
prevent further root intrusion and extend the service life of the pipe by 25 years. This
trenchless technology construction process will allow the contractor to work above ground
without disturbing existing streetscape and minimizing the traffic delays.
On November 25, 2003, two (2) bids were publicly opened for the project. The lowest
responsive bidder, Sancon Technologies,lnc., submitted a bid of $64,860.00. The bid has
been verified and found to be in compliance with the contract.
The contract time for this project is specified at 14 calendar days. Work is expected to
begin at the end of December 2003 and be completed by the first week of January 2004.
ALTERNATIVES:
The following alternatives are provided for the Council's consideration:
. Approve staff's recommendations;
. Do not approve staff's recommendations;
. Modify as appropriate and approve staff's recommendations; or
. Provide direction to staff.
Attachments:
1. Notice of Exemption
2. Bid Opening Log Sheet
3. Project Schedule
- -----.--
. ".....,-_.........~..~--.~.--......
ATTACHMENT 1
Notice of Exemption
To: Office of Planning and Research From: (public Agency) City of Arroyo Grande
1440 Tenth Street. Room 121 P.O. Box 550
Sacramento, CA 95814 Arroyo Grande, CA 93421
00 County Clerk
County of San Luis Obispo
County Government Center
San Luis Obispo, CA 93408
Project Title: Crown Hill Sewer Lininf! Pro;ect. PW 2003-06
Project Location - Specific: In the City of Arrovo Grande- Crown Hill and East Brach Street
Project Location - CIty: Arrovo Grande Project Location - County: San Luis Obisoo
Description of Project: Lininf! of existinf! sewer pipe for oipe rehabilitation,
Name of Public Agency Approving Project: City of Arrovo Grande - Public Works Deoartment
Name of Person or Agency Carrying Out Project: Thomas Korman. P.E.
Exempt Status: (check one)
o Ministerial (Section 12080(b)(1); 15268);
o Declared Emergency (Sec. 21080(b)(3); I 5269(a));
o Emergency Project (Sec. 21080(b)(4); 1 5269(b)(c));
I!I Categorical Exemption. State type and section number: Section 15301 (e)
o Statutory Exemptions. State code number:
Reasons Why Project Is Exempt: All work in underground in existinv sewer pioe.
Lead Agency
Contact Person: Thomas Korman. P .E. Area CodefTelephone/Extension: (805) 473-5447
If filed by Applicant:
I, Attach a certified document of exemption finding.
2. Has a Notice of Exemption been filed by the public agency approving the project? I!I Yes ONo
Signature: Date: Title: Public Works Director
00 Signed by Lead Agency o Date received for filing at OPR:
0 Signed by Applicant
.,.
.
.- -- ,-_.,- -- "'-'~----"-""'-"""'-""""'----
ATTACHMENT 2
BID OPENING LOG SHEET
CITY OF ARROYO GRANDE
BID OPENING: November 25, 2003; 2:00 p.m.
Crown Hill Sewer Lining
BIDDER'S NAME, CITY TOTAL
Sancon Engineering, Inc. $64,860.00
Huntington Beach
Southwest Pipeline and Trenchless Corp. $69,332.00
Gardena
~ lW <fIAAJJfc.L--
Kelly Wet ore
Director of Administrative Services/Deputy City Clerk
c: Director of Public Works
City Manager
"
ATTACHMENT 3
.
redyol~r&~
Tentative Project Schedule
For
Crown Hill Sewer Lining Project
Project No. PW 2003-06
(350-5811-XXXX)
1 st Notice to Bidders......... ....... .................... .......................................... ............... November 5, 2003
2nd Notice to Bidders........... ........ ........... ....................... ....... ..............................November 12, 2003
Pre-Bid Conference / Job Walk (Thursday, 2:00 pm, City Council Chambers) ............ November 20, 2003
Bid Opening (Tuesday, 2:00 p.m City Council Chambers) ..........................................November 25,2003
Authorization to Award Contract (City Council Meeting) ........................................... December 9, 2003
Notice of Award ............. ...... ........ ............................................ ............ ............. December 10, 2003
Notice to Proceed. ............... ........ ..... ................... ......... ...... ........ ..... .......... ......... December 22, 2003
Contract Completion (14 calendar days) ...................................................................... January 9,2004
..
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~----.,_.._,--~." ~._,> -~.~.. .~~..~- '.'--.- ...., .-....-.-.-..-
8.f.
MEMORANDUM
TO: CITY COUNCIL
ROB STRONG, COMMUNITY DEVELOPMENT DIREC~
FROM:
BY: TERESA MCCLISH, ASSOCIATE PLANNE~'
SUBJECT: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ARROYO GRANDE AMENDING TITLE 16 OF THE
MUNICIPAL CODE (DEVELOPMENT CODE AMENDMENT
03-(05) TO INCORPORATE ,REGULATIONS AND
AMENDING THE ZONING MAP TO CREATE AN
AGRICULTURAL PRESERVATION OVERLAY DISTRICT OF
100 FEET AROUND AGRICUL TURALL Y ZONED
PROPERTIES FOR THE PURPOSES OF AGRICULTURAL
BUFFERS, REQUIRING ADEQUATE FINDINGS FOR
SUBDIVISION OR REZONING OF AGRICULTURAL LANDS,
IMPLEMENTING MITIGATION REQUIREMENTS AND
REVISE LAND USE REGULATIONS FOR ALL
AGRICULTURAL DISTRICTS
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council adopt the attached ordinance amending Title 16 of the
Municipal Code (Development Code Amendment 03-005) to incorporate regulations and
amend the Zoning Map to create an Agricultural Preservation Overlay District placing a
perimeter overlay district of 100 feet around Agriculturally Zoned properties for the
purposes of agricultural buffers, require adequate findings for subdivision or rezoning of
agricultural lands, implement mitigation requirements and revise land use regulations for all
Agricultural Districts
FUNDING:
There is no fiscal impact related to this item.
DISCUSSION:
Background
On July 22, 2003, the City Council adopted Resolution No. 3699 to initiate preparation of
regulations and programs based on Planning Commission recommendations from the
Report on the Conservation of Agricultural' Resources for the City of Arroyo Grande
(Agricultural Report). On September 23, 2003, the City Council adopted a resolution for
the first series of actions required by Resolution No. 3699 which amended the 2001
General Plan to redesignate certain properties back to Agriculture. The proposed
Ordinance represents another action based on Resolution No. 3699, and contains the
S:\COMMUNITY _DEVELOPMENT\PROJECTS\SPECIAL\AG_STUDY\cc 120903\CC Staff Report 120903.docCC Staff Report
120903.doc 12/4/03
~-
CITY COUNCIL
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE
AMENDING TITLE 16 FOR AGRICUL TURAL DISTRICTS
DECEMBER 9, 2003
PAGE 2 OF 2
implementing regulations for several policies required in the 2001 General Plan. On
November 25, 2003, the Council introduced the attached Ordinance which includes the
following:
Exhibits "A 1 - A4" - proposed zoning map amendments creating an Agricultural
Preservation Overlay District AG-2.2, placing a perimeter Overlay district of 100 feet
around agriculturally zoned properties for the purpose of providing an agricultural buffer;
Exhibit "B" - language establishing the proposed Agricultural Preservation Overlay District
(16.28.020.C.), regulations for agricultural buffers (16.12.170.E.), findings required for
subdivisions and rezoning applications (16.16.040.E, 16.20.060.C and 16.202.070.C)
mitigation requirements (16.12.170.F. including definitions in 16.04) and revised use
regulations and property development standards for Agricultural districts to provide
flexibility for agricultural operations (16.28.030 and 16.20.040).
Further Implementation Proarams
Resolution 3699 included several related actions that are intended to comprehensively
comprise a program of resource protection. Future actions concerning Resolution 3699
include revision of 2001 General Plan Agricultural Objective Ag1 regarding the word
"minimize", programs for agricultural conservation easements and agriculture enterprise
(General Plan Amendment 03-003), and specific use regulations for greenhouses. These
items are tentatively scheduled to be heard by the Planning Commission in January, 2004.
Public Comment
Several comment letters were received and distributed during the public hearing process
concerning Resolution 3699. A total of 958 notices announcing both the Planning
Commission and City Council hearings for August 26, 2003 were sent within a 400-foot
radius of owners of Agriculturally zoned properties. The proposed Development Code
Amendment 03-005 and forthcoming General Plan Amendment 03-003 were continued to
September 23, 2003 and subsequently to the Planning Commission meeting of November
4, 2003 and the City Council meeting of November 25, 2003.
Environmental Review
The potential environmental impacts of the proposed General Plan and Municipal Code
Amendments were analyzed and considered in the Certified Program EIR for the 2001
General Plan Update and have been determined to be adequate for evaluation of the
subject amendments to Title 16 and appropriate findings are included in the proposed
ordinance.
AL TERNA TIVES:
The following alternatives are presented for Council consideration:
- Adopt the attached ordinance;
- Make modifications and adopt the attached ordinance;
- Do not adopt the attached ordinance;
- Provide direction to staff.
cc Staff Report 120903 12/5/03
~--------
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ARROYO GRANDE AMENDING TITLE 16 OF THE
MUNICIPAL CODE (DEVELOPMENT CODE AMENDMENT
03-005) TO INCORPORATE REGULATIONS AND
AMENDING THE ZONING MAP TO CREATE AN
AGRICULTURAL PRESERVATION OVERLAY DISTRICT
OF 100 FEET AROUND AGRICUL TURALL Y ZONED
PROPERTIES FOR THE PURPOSES OF AGRICUL TURAL
BUFFERS, REQUIRING ADEQUATE FINDINGS FOR
SUBDIVISION OR REZONING OF AGRICULTURAL
LANDS, IMPLEMENTING MITIGATION REQUIREMENTS
AND REVISE LAND USE REGULATIONS FOR ALL
AGRICULTURAL DISTRICTS
WHEREAS, the City Council of Arroyo Grande adopted the updated General Plan on
which became effective on October 9, 2001 which recognizes the historic role of
agriculture within the community and outlines goals, objectives and policies regarding the
retention of agricultural lands within and adjacent to the City; and
WHEREAS, the City has a responsibility to assure adherence to the General Plan in
meeting the needs and desires of the residents and the community; and
WHEREAS, the City is required to complete a comprehensive review and necessary
revisions to the Development Code and zoning map for consistency with the General Plan
in accordance with Government Code Section 65860; and
WHEREAS, on August 26, 2003 the City Council of the City of Arroyo Grande reviewed
and considered the information in the Report on the Conservation of Agriculture in the
City of Arroyo Grande, as well as public testimony presented prior to and at the public
hearings and adopted Resolution No. 3699 to initiate implementing ordinances and
programs;
WHEREAS, Chapter 16.28 of the Arroyo Grande Municipal Code implements the
policies of the General Plan by providing for areas wherein uses are limited to
agricultural and compatible pursuits and wherein development regulations restrict the
intrusion of urban and rural development; and
WHEREAS, the City Council of the City of Arroyo Grande has reviewed and considered
the information in the proposed Ordinance and public testimony presented at the public
hearings, Planning Commission recommendations, staff reports and all other
information and documents that are part of the public record for this matter; and
^-----"
--~_.,,-
ORDINANCE NO.
PAGE 2 of 2
WHEREAS, the City Council finds, after due study, deliberation and public hearing, the
following circumstances exist:
A. The proposed amendment to the Zoning Map and revisions to Title 16 is
consistent with the goals, objectives, policies, and programs of the General Plan,
and is desirable in order to implement the provisions of the General Plan based
on Resolution No. 3699 and further finds that:
1. The acreage of prime agricultural land within the City limits is a particularly
important resource, has unique qualities and benefits the community through
the provision of productive open space, economic activity and employment
base, wildlife habitat and an important filter to rain runoff, sustaining rural
community character, and the provision of locally grown produce.
2. The acreage of agricultural land within the City limits has rapidly decreased
over the previous three decades and is particularly threatened due to
encroaching urban development, available infrastructure and land costs that
are substantially higher than average costs of agricultural lands within the
County of San Luis Obispo.
3. The protection of agricultural acreage within the City's Area of Environmental
Concern is important to preserving a strong urban edge and preventing urban
sprawl.
4. The protection of agricultural lands within the City limits is the City's greatest
priority as described in the 2001 General Plan followed by lands adjacent to
the City limits, and thirdly, other agricultural lands within the City's Area of
Environmental Concern planning area.
5. It is the policy of the City to work cooperatively with San Luis Obispo County
to preserve agricultural land within the City's Area of Environmental Concern
planning area, beyond that deemed necessary for development; it is further
the policy of the City to protect and conserve agricultural land, especially in
ar~as presently farmed or having Class I or II soils or areas that are presently
or were historically farmed or are potentially capable of being farmed.
6. Some urban uses when contiguous to farmland can affect how an agricultural
use can be operated, which can lead to the conversion of agricultural land to
urban use.
7. By requiring conservation easements as a condition for land being converted
from an agricultural use and by requiring a one hundred foot buffer, the City
~,,--------------~--
._ ~.._ n...._._,__
ORDINANCE NO.
PAGE 3 of 3
shall be helping to ensure prime farmland remains in or available for
agricultural use.
B. The proposed amendment to the Zoning Map and revisions to Title 16 will not
adversely affect the public health, safety, and welfare or result in an illogical land
use pattern.
C. The proposed amendment to the Zoning Map and revisions to Title 16 is
consistent with the purpose and intent of Title 16.
D. A Program EIR was prepared and certified on October 9, 2001 for the 2001
General Plan update which incorporated an analysis of agricultural buffers within
the City of Arroyo Grande and the proposed amendments to Title 16 are within
the scope of the Program EIR and the potential environmental impacts of the
proposed amendment are determined by this Council to be less than significant.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE
DOES ORDAIN AS FOLLOWS:
SECTION 1: The above recitals and findings are true and correct.
SECTION 2: Development Code Section 16.24.020, also known as the "Zoning Map of
the City of Arroyo Grande", is hereby amended to incorporate overlay district D-Ag-2.2
as shown in Exhibits" A 1-A4" attached hereto and incorporated herein by reference.
SECTION 3: Arroyo Grande Municipal Code Sections set forth hereinbelow are hereby
amended as shown in Exhibit "B" attached hereto and incorporated herein by this
reference:
a. Amend Sections: 16.04.070.C.,16.16.040.E.,16.20.060.C., 16.20.070.C.,
16.28.020.C., 16.28.030, Table 16.28.030-A, 16.28.040, and Table 16.28.040-A;
b. Add Sections: 16.12.170.E., 16.12.170.F., and 16.28.020.C.
SECTION 4: If any section, subsection, subdivision, paragraph, sentence, clause or
phrase of this Ordinance or any part thereof is for any reason held to be unlawful, such
decision shall not affect the validity of the remaining portion of this Ordinance or any
part thereof. The City Council hereby declares that it would have passed each section,
subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of
the fact that anyone or more section, subsection, subdivision, paragraph, sentence,
clause or phrases be declared unlawful.
SECTION 5: A summary of this Ordinance shall be published in a newspaper published
and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council
-.--...-- ..-.-.-
."--'--
ORDINANCE NO.
PAGE 4 of 4
meeting at which the proposed Ordinance is to be adopted. A certified copy of the full
text of the proposed Ordinance shall be posted in the office of the Director of
Administrative Services/Deputy City Clerk. Within fifteen (15) days after adoption of the
Ordinance, the summary with the names of those City Council Members voting for and
against the Ordinance shall be published again, and the Director of Administrative
Services/Deputy City Clerk shall post a certified copy of the full text of such adopted
Ordinance.
SECTION 6: This Ordinance shall become effective thirty (30) days after the date of its
adoption.
On motion of Council Member , seconded
by Council Member and on the following roll call
vote, to-wit:
AYES:
NOES:
ABSENT:
the foregoing Ordinance was adopted this day of ,
2003.
--......,-.---
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ORDINANCE NO.
PAGE 5 of 5
TONY M. FERRARA, MAYOR
ATTEST:
KELL Y WETMORE, DIRECTOR OF ADMINISTRATIVE SERVICESI
DEPUTY CITY CLERK
APPROVED AS TO CONTENT:
STEVEN ADAMS, CITY MANAGER
APPROVED AS TO FORM:
TIMOTHY J. CARMEL" CITY ATTORNEY
-
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EXHIBIT B
16.04.070.C. Definitions. (Note to codifer; these definitions are being added
to Section 16.04.070.C.)
-A-
Agricultural conservation easement: The granting of an easement over
agricultural land for the purpose of restricting its use to agricultural land. The
interest granted pursuant to an agricultural conservation easement is an interest
in land, which is less than fee simple.
Agricultural land or farmland: Those land areas of' the county and/or city
specifically designated or zoned as Agriculture, Agriculture Preserve or
Agricultural General.
Agricultural mitigation land: Agricultural land encumbered by a farmland deed
restriction, a farmland conservation easement or such other farmland
conservation mechanism acceptable to the city.
-F-
Farmland deed restriction: The creation of a deed restriction, covenant or
condition which precludes the use of the agricultural land subject to the restriction
for any nonagricultural purposes, use, operation or activity. The deed restriction
shall provide that the land subject to the restriction will permanently remain
agricultural land.
-Q-
Qualifying entity:. A nonprofit public benefit 501 (c)(3) corporation operating in
San Luis Obispo County for the purpos~ of conserving and protecting land in its
natural, rural or agricultural condition. The following entity is a qualifying entity:
Land Conservancy of San Luis Obispo. Other entities may be approved by the
city council from time to time.
16.12.170. Right to farm provisions and farmland preservation.
E. Agricultural buffer.
1. In conjunction with General Plan policies outlined in the Agriculture,
Conservation and Open Space Element, and specifically Objective Ag5,
the city has determined that the use of property for agricultural operations
is a high priority. To minimize potential conflicts between agricultural and
nonagricultural land uses, including the protection of public health, the
reduction of noise and odor, and the reduction of risk to farm operations
from domestic animal predation, crop theft and damage and complaints
from neighboring urban dwellers, all new development adjacent to any
designated agricultural district shall be required to provide an agricultural
1
. .-,,-.___. '-''-<-i_._.'''_
-
buffer. "Development" as used in this section, means subdivision of land,
use permits and building permits for new residential units.
2. The buffer area shall be a minimum of one hundred feet, measured from
the edge of the designated agricultural district. Optimally, to achieve a
maximum separation, a buffer wider than one hundred feet is encouraged
and may be required if it is determined through environmental review
under CEQA and/or recommended by the San Luis Obispo County
Agricultural Commissioner. A decreased buffer distance may be allowed
if it can be demonstrated that a physical buffer exists (eg. Arroyo Grande,
Creek) that is adequate and approved by the San Luis Obispo County
Agricultural Commissioner.
3. The minimum one hundred foot agricultural buffer area shall be
comprised of two components: a twenty-foot wide agricultural landscaped
transition area contiguous to an eighty-foot wide agricultural buffer
adjacent to the designated agricultural district. The twenty-foot transition
area may include pedestrian access. The combined one hundred foot
agricultural buffer shall not qualify as farmland mitigation as required by
section 16.12.170.F.
4. The following shall be permitted in the one hundred foot agricultural buffer:
native plants, tree or hedge rows, roads, drainage channels, storm
retention ponds, natural areas such as creeks or drainage swales, utility
corridors, 'storage, and any use, including agricultural or limited
commercial uses, determined by the planning commission to be consistent
with the use of the property' as an agricultural buffer. No new residential
use shall be permitted within the buffer area unless it is determined there
would be no other economically viable use of the property. Restoration of
a damaged residence within the buffer area may be pursued in
accordance with Section 16.48.110.
5. The one hundred foot agricultural buffer shall be established by the
developer pursuant to a plan approved by the Community Development
Director and the Parks, Recreation and Facilities Director. The plan shall
include provisions for the use of integrated weed and pest management
techniques and soil erosion control. An agreement in the form approved
by the city attorney shall be recorded, which shall include the
requirements of this section.
F. Agricultural land conversion.
1. The city shall require agricultural mitigation by applicants for discretionary
entitlements which will change the use of agricultural land to any non
agricultural use.
2
. '-...,..'.......,....,.<<.........'"''''.--
2. Agricultural mitigation shall be satisfied by:
a. Granting a farmland conservation easement, a farmland deed
restriction or other farmland conservation mechanism to or for the
benefit of the city and/or a qualifying entity approved by the city.
Mitigation shall be required for that portion of the land which no
longer will be designated agricultural land, including any portion of
the land used for park and recreation purposes. At least as many
acres of prime agricultural land shall be protected as was changed
to a non agricultural use within city limits, or up to two times as '
many acres of agricultural land shall be protected outside the city
but within the city's Area of Environmental Concern, as was
changed to a nonagricultural use, in order to mitigate the loss of
agricultural land; or
b. In lieu of conserving agricultural land as provided above if the city
council determines that the payment. of in-lieu fees provide a
superior opportunity to satisfy the goals and policies of the General
Plan, agricultural mitigation may be satisfied by the payment of a
fee, established by the city council by resolution or through an
enforceable agreement with the developer, based upon a farmland
replacement factor of up to 2:1 to be used for acquisition of a
farmland conservation easement or farmland deed restriction. The
in lieu fee option must be approved by the city council. The fee
shall be equal to or greater than the value of a previous farmland
conservation transaction in the city plus the estimated cost of legal,
appraisal and other costs, including staff time, to acquire property
for agricultural mitigation. The in lieu fee, paid to the city, shall be
used for farmland mitigation purposes, with priority given to lands
with prime agricultural soils located within the city.
3. It is the intent of this program to work in a coordinated fashion with San
Luis Obispo County and State agencies, and, therefore, farmland
conservation easement areas may overlap partially or completely with
habitat easement areas approved by the State Department of Fish and
Game. Up to twenty percent of the farmland conservation easement area
may be enhanced for wildlife habitat purposes as per the requirements of
the State Department of Fish and Game and/or San Luis Obispo County
management programs; payment of appropriate maintenance, processing
or other fees may also be required.
4. Comparable soils and water supply.
a. To the greatest extent possible, the agricultural mitigation land shall
be comparable in soil quality with the agricultural land whose use is
being changed to nonagricultural use.
3
~~-
..- ._~>--",--.....~."-,,._---
b. The agricultural mitigation land shall have an adequate water
supply to support agricultural use and the water supply on the
agricultural mitigation land shall be protected in the agricultural
conservation easement, the farmland deed restriction or other
document evidencing the agricultural mitigation.
5. Eligible lands. The first priority for agricultural mitigation land shall be
farmland located within city limits. The second priority for agricultural
mitigation shall be farmland located adjacent to city limits, and the third .
priority, farmland located within the city's Area of Environmental Concern,
as shown in the 2001 General Plan. The criteria for preferred locations or
zones for agricultural mitigation land shall be determined by the city
council after receiving input from the planning commission and San Luis
Obispo County Agricultural Commissioner. In making their determination,
the following factors shall be considered:
a. The preferred locations shall be compatible with the 2001 General
Plan and the general plan of San Luis Obispo County.
b. The preferred locations shall include comparable soil types to that
most likely to be lost due to proposed development.
c. Agricultural mitigation land consisting of contiguous parcels shall be
preferred.
d. Land previously protected by a conservation easement of any
nature or kind is not eligible to qualify as agricultural mitigation land.
6. Requirements of instruments; duration.
a. To qualify as an instrument encumbering agricultural mitigation
land, all owners of the agricultural mitigation land shall execute the
instrument.
b. The instrument shall be in recordable form and contain an
accurate legal description setting forth the description of the
agricultural mitigation land.
c. The instrument shall prohibit any activity, which substantially
impairs or diminishes the agricultural productivity of the land, as
determined by the planning commission.
d. The instrument shall protect the existing water rights and retain
them with the agricultural mitigation land.
4
---.--- .,-~-- ---- -
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e. The applicant shall pay an agricultural mitigation fee to pay the
costs of administering, monitoring and enforcing the instrument in
an amount determined by city council.
f. Interests in agricultural mitigation land shall be held in trust by a
qualifying entity and/or the city, in perpetuity. Except as provided in
subsection (g) of this section, the qualifying entity or the city shall
not sell, lease, or convey any interest in agricultural mitigation land
which it shall acquire, except to continue agricultural uses in
accordance with the encumbering instrument.
g. If judicial proceedings find that the public interests described in
Chapter 16.28 of this title can no longer reasonably be fulfilled as
to an interest acquired, the interest in the agricultural mitigation
, land may be extinguished through sale and the proceeds shall be
used to acquire interests in other agricultural mitigation land in San
Luis Obispo County, as approved by the city and provided in this
chapter.
h. If any qualifying entity owning an interest in agricultural mitigation
land ceases to exist, the duty to hold, administer, monitor and
enforce the interest shall pass to the city or its designee.
i. Each qualifying entity shall monitor lands and easements it
acquires under this chapter and shall review and monitor the
implementation of the management and maintenance plans for
these lands and easement areas.
7. Violation.
Any person or entity who violates any provision of this chapter shall be
deemed guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine not exceeding the maximum prescribed by law. In
addition, any person or entity who violates any provision of this chapter
shall be liable to the transferee of the property for actual damages.
16.16.040. Amendments to zoning districts and other provisions.
E. Required findings. The city council may approve amendments to this title,
including amendment to the zoning map only if all of the following findings of fact
can be made in an affirmative manner:
1. The proposed change of zone (or revision to this title) is consistent with
the goals, objectives, policies and programs of the general plan, and is
necessary and desirable to implement to provisions of the general plan;
5
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2. The proposed change of zone (or revision to this title) will not adversely
affect the public health, safety, and welfare or result in an illogical land use
pattern ;
3. The proposed change of zone (or revision to this title) is consistent with
the purpose and intent of the title (or the portion of this title it is amending);
4. The potential environmental impacts of the proposed change of zone (or
revision to this title) are insignificant, or there are overriding considerations
that outweigh the potential impacts;
5. For applications to amend this title for the purposes of rezoning property in
an agricultural district to a non-agricultural district, the following additional,
findings of fact must be made in an affirmative manner;
a. That the uneconomic nature of the agricultural use is primarily
attributable to circumstances beyond the control of the landowner
and the city, and there are, no other reasonable or comparable
agricultural uses to which the land may be put, either individually
or in combination with other adjacent farmland parcels; and
b. The proposed change in zone (or revision to this title) is for a
parcel, or for a contiguous set of parcels, that is legally
nonconforming as to minimum area in the Agriculture district; and
c. The proposed change in zone (or revision to this title) will not
result in, intensify, or contribute to discontiguous patterns of urban
development; and
d. The proposed change in zone (or revision to this title) will not likely
result in the removal of adjacent lands from agricultural use; and
e. The proposed change in zone (or revision to this title) is for an
alternative use which is consistent with the applicable provisions of
the city's General Plan; and
f. That there is no proximate land, which is both available and
suitable that would provide more contiguous patterns of urban
development than development of the subject farmland.
16.20.060. Tentative tract maps.
C. Findings. Any action taken by the planning commission or city council
regarding a tentative tract map shall be supported by the findings required by
applJcable provisions of Section 21100 of the California Public Resources Code
and Sections 66412.3, 66427.1, 66473.1, 66473.5, 66474, and 66474.6 of the
California Government Code. In addition, the following findings shall be made in
the affirmative prior to the approval of a tentative tract map:
1. The proposed tentative tract map is consistent with goals, objectives,
policies, plans, programs, intent and requirements of the Arroyo Grande
General Plan, as well as any applicable specific plan, and the
requirements of this title.
2. The site is physically suitable for the type of development proposed.
3. The site is physically suitable for the proposed density of development.
6
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4. The design of the tentative tract map or the proposed improvements are
not likely to cause substantial environmental damage or substantially and
avoidably injure fish or wildlife or their habitat.
5. The design of the subdivision or type of improvements is not likely to
cause serious public health problems.
6. The design of the tentative tract map or the type of improvements will not
conflict with easements acquired by the public-at-Iarge for access through,
or use of, property within the proposed tentative tract map or that alternate
easements for access or for use will be provided, and that these
alternative easements will be substantially equivalent to ones previously ,
acquired by the public.
7. The discharge of waste from the proposed subdivision into an existing
community sewer system will not result in violation of existing
requirements as prescribed in Division 7 (commencing with Section
13000) of the California Water Code.
8. Adequate public services and facilities exist or will be provided as the
result of the proposed tentative tract map to support project development.
9. For a proposed subdivision that includes, or is adjacent to an Agriculture
district; the design of the tentative map or proposed improvements shall
provide an adequate buffer, according to Section 16.12.170.F. and as
further determined through environmental review under CEQA, to
minimize potential conflicts between agricultural and non-agricultural land
uses and to protect the public health, safety and welfare.
16.20.070. Tentative parcel map.
C. Findings. Any action taken by the planning commission or city council
regarding a tentative parcel map shall be supported by the findings required by
Section 66427.1, 66573.5, 66474 and 66474.6 of the Government Code and
Section 21100 of the Public Resources Code. In addition, the following findings
shall be made in the affirmative prior to approval of a tentative parcel map:
1. The proposed tentative parcel map is consistent with goals, objectives,
policies, plans, programs, intent and requirements of the Arroyo Grande
General Plan, as well as any applicable Specific Plan, and the
requirements of this title.
2. The site is physically suitable for the type of development proposed.
3. The site is physically suitable for the proposed density of development.
4. The design of the tentative parcel map or the proposed improvements are
not likely to cause substantial environmental damage or substantially and
avoidably injure fish or wildlife or their habitat.
5. The design of the subdivision or type of improvements is not likely to
cause serious public health problems.
6. The design of the tentative parcel map or the type of improvements will
not conflict with easements acquired by the public at large for access
through, or use of, property within the proposed tentative parcel map or
that alternate easements for access or for use will be provided, and that
7
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these alternative easements will be substantially equivalent to ones
previously acquired by the public.
7. The discharge of waste from the proposed subdivision into an existing
community sewer system will not result in violation of existing
requirements as prescribed by Division 7 (commencing with Section
13000) of the California Water Code.
8. Adequate public services and facilities exist or will be provided as the
result of the proposed tentative parcel map to support project
development.
9. For a proposed subdivision that includes, or is adjacent to an Agricultural
district; the design of the tentative map or proposed improvements shall
provide an adequate buffer, according to Section 16.12.170.F. and as
further determined through environmental review under CEQA, to
minimize potential conflicts between agricultural and non-agricultural land
uses and to protect the public health, safety and welfare.
16.28.020. Agricultural districts.
C. Agricultural preservation overlay (AG-2.2) district. The primary purpose of
the AG-2.2 overlay district is to provide for a mechanism to minimize potential
conflicts between agricultural and nonagricultural land uses. This district is to
provide for an agricultural buffer transitional area and requires that new
development and changes in use require discretionary approval in
accordance with Section 16.12.170.E:.
16.28.030. Use regulations for agricultural districts.
Subject to applicable general plan policies and Arroyo Grande ordinance
provisions, the following uses identified in Table 16.28.030-A shall be permitted
uses where the symbol "P" appears in the column beneath each agricultural zone
designation as shown. Where the symbol "MUP" appears, the use shall be
permitted subject to the minor use permit process pursuant to Section 16.16.060.
Where the symbol "C" appears, uses shall be permitted subject to the issuance
of a conditional use permit in accordance with the provisions of Section
16.16.050. Uses not identified in the table are prohibited.
8
. ......,.""...~<_.",..,-"-
Table 16.28.030-A
Uses Permitted Within Agricultural Districts
Legend
P Permitted
MUP Minor Use Permit
C Permitted Subject to Issuance of Conditional Use Permit
NP Not Permitted
Use AG AP
A. Agricultural Uses
1. Field crops, flower and vegetable crops, tree crops P P
2. Greenhouses used only for the purposes of onsite MUP MUP
propagation and culture
3. Grazing of cattle, horses, sheep, goats, or other farm P P
stock or animals, not including hogs, but including the
supplementary feeding thereof
4. Farms or establishments for the selective or experimental P P
breeding and raising of cattle, sheep, goats, and horses
5. The commercial or noncommercial raising of hogs C C
6. Farms for hatching, raising, butchering, or marketing of C C
chickens, turkeys. or other fowl. rabbits, fish, frogs,
chinchilla, mink, or other small animals
7. Farms for commercial egg production, including ancillary C C
activities or grading washing, and packing of whole eggs,
and containerizing those eggs incidentally broken during
such ancillary activities
8. Dairy farms and dairy calf, heifer, cry cow and herd C C
replacement operations, including the grazing of cattle
B. Residential Uses
1. Ranch or farm dwelling appurtenant to a principal P P
agricultural use
2. Single-family detached dwelling on conforming parcels P P
3. Single-family detached dwelling on legal non-conforming C C
, lots pursuant to Section 16.16.050-D.2
4. farm labor camp (temporary, only during harvest season) MUP MUP
5. Employee's residence (permanent - subject to second unit C C
regulations) ,
6. Second residential dwelling unit C C
7:.. Guest ranches MUP C
C. Commercial Uses
1. Temporary stand for the display and sale during harvest MUP MUP
season of the agricultural produce of any permitted use
that is produced upon the premises and related products
2. Permanent stand for the display and sale of the MUP MUP
agricultural produce of any permitted use that is produced
upon the premises and related products
9
, " I ,.-.,&.'1- ___ - - ---..-- ----
-~-"_._---'-'_._--'~"-'-~--'----'-' ~~--
Use AG AP
3. Temporary or permanent stand for the display and sale of CUP CUP
agricultural produce of any permitted use that is produced
on or off the premises and related products
4. Feed stores C NP
5. Commercial stables C NP
6. Riding academies C NP
7. Kennels and catteries C NP
8. Winery and appurtenant and incidental uses with C C
established onsite vineyard
9. Greenhouses (not otherwise allowed under No. A-2) C C
10. Wholesale nurseries C C
11. Large animal Veterinary office C NP
D. Industrial Uses
1. The breaking, separation, pasteurization, containerizing
and freezing of eggs
a. For eggs produced onsite C C
b. For eggs produced elsewhere and brought onsite for C NP
processing
2. Packaging, processing and marketing of agricultural C NP
waste products other than those produced onsite
3. Drying, packing, canning, freezing, and other accepted C C
methods of processing the produce resulting from
permitted uses when such processing is conducted
primarily in conjunction with onsite farming operation
4. Packaged fertilizer and agricultural chemical storage
a. For exclusive use onsite P P
b. For offsite use C C
E. Public/Quasi-Public Uses
1. Public utility and public service substations, reservoirs, MUP MUP
pumping plants, and similar installations not including
public utility offices
2 Community gardens C NP
3. Other public facilities when required for health, safety or C NP
public welfare
F. Home Occupations P P
(Subject to the provisions of Section 16.12.090, and the
issuance of a home occupation permit)
G. 'Accessory Uses
1. Guest quarters C C
2. Private swimming pool, tennis court P P
3. Other accessory uses and structures located on the same P P
site as a permitted use
4. Other accessory uses and structures located on the same MUP MUP
site as a use requiring minor use permit review
5. Other accessory uses and structures located on the same C C
site as a use requiring a conditional use permit
H. Other uses similar to, and no more objectionable than C C
the uses identified above, as determined by the
- planning commission
10
.
. -,.".""._,-,,,----,,,,--....-,-,-
16.28.040. Agricultural district development standards.
The following property development standards shall apply to all land and
permitted, or conditionally permitted buildings located within their respective
districts. The standards stated herein shall not be construed to supersede more
restrictive site development standards contained in the conditions, covenants and
restrictions of any property. However, in no case shall private deed restrictions
permit a lesser standard in the case of a minimum standard of this section or
permit a greater standard in the case of a maximum standard of this section.
A. General Requirements. Table 16.28.040-A sets forth minimum
site development standards for agricultural development projects.
Table 16.28.040-A
Agricultural Site Development Standards
AG AP
1. Maximum Density
a) single family dwelling 1 1
units per parcel)
b) farm worker housing As determined through
discretionary review
2. Minimum parcel size (gross 10.0 10.0
acres)
3. Minimum lot width 330' 330'
4. Minimum front yard building 50'* 50'*
setback
5. Minimum rear yard building 50'. 50'.
setback
6 Minimum interior side yard 30'. 30'.
setback
7 Minimum street side yard 30'. 30'*
setback
8 Maximum height for buildings 30' 30'
and structures
B. Accessory buildings and structures.
1. Accessory buildings and structures sha1l be sited to minimize
disruption of agricultural operations, avoid conversions of
productive farmland and take maximum advantage of existing
infrastructure.
2. Accessory buildings and structures shall be permitted in the rear
and side yards provided no building or structure is allowed in the
side yard within sixty (60) feet of the front lot line, nor within ten (10)
feet of the side property line, nor permitted in any street side yard.
II
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8_g_
MEMORANDUM
TO: CITY COUNCIL
FROM: ~OB STRONG, COMMUNITY DEVELOPMENT DIRECTOR
BY: ~ A\:KELL Y HEFFERNON, ASSOCIATE PLANNER
SUBJECT: CONSIDERATION OF ADOPTION OF AN ORDINANCE OF THE CITY
OF ARROYO GRANDE AMENDING THE ZONING MAP OF THE CITY
OF ARROYO GRANDE AND AMENDING PLANNED DEVELOPMENT
1.5; DEVELOPMENT CODE AMENDMENT 02-002 AND PLANNED
DEVELOPMENT AMENDMENT 02-001, APPLIED FOR BY DON
MCHANEY FOR PROPERTY LOCATED ON THE NORTH SIDE OF
FARROLL AVENUE BETWEEN OAK PARK BOULEVARD AND
GOLDEN WEST PLACE
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council adopt the attached Ordinance amending the Zoning
Map and Planned Development 1.5 for'property located on Farroll Avenue.
FUNDING:
There are no direct City costs related to the subject rezoning.
DISCUSSION:
The City Council, at its meeting of November 25, 2003, introduced for first reading an
Ordinance amending a portion of the Zoning Map and designating the subject property
as CondominiumlTownhouse (MF) with a Planned Development overlay (MF-PD). The
project includes sixty-five (65) residential lots, thirteen (13) of which are located along
Dixson Street and proposed as custom home lots, and 52 lots that are configured in a
higher density with four (4) separate house plans. The project would be constructed in
two phases, with the higher density lots constructed first in Phase 1. It is recommended
the City Council adopt the Ordinance.
AL TERNA TIVES:
The following alternatives are presented for Council's consideration:
- Approve staffs and Planning Commission's recommendation;
- Modify as appropriate and reintroduce;
- Do not adopt and provide direction to staff.
. . ~---
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ARROYO GRANDE AMENDING THE ZONING MAP
TO DESIGNATE THE SUBJECT PROPERTY AS
CONDOMINIUMITOWNHOUSE (MF) WITH A PLANNED
DEVELOPMENT OVERLAY; DEVELOPMENT CODE
AMENDMENT 02-002 AND PLANNED DEVELOPMENT
AMENDMENT 02-001, APPLIED FOR BY DON
McHANEY, FOR PROPERTY LOCATED ON FARROLL
AVENUE
WHEREAS, the 2001 General Plan Update Urban Land Use Element Map designates
the 10.3-acre property located on the north side of Farroll Avenue and east of Dixson
Street, Assessor's Parcel Number 077-251-005 (the "subject property") as Low Medium
Density Residential (LM) within a Planned Development overlay; and
WHEREAS, the City of Arroyo Grande Zoning Map designates the subject property as
Residential Suburban (RS) with a Planned Development overlay; and
WHEREAS, the applicant, Don McHaney, has filed an application for Development Code
Amendment 02-002 and Planned Development Amendment 02-001 to amend the Zoning
Map and designate the project parcel as CondominiumfTownhouse (MF) with a PD 1.5
overlay (MF-PD 1.5); and
WHEREAS, adoption of the proposed zoning designation would establish land use,
development and design standards for the above described area; and
WHEREAS, the Planning Commission of the City of Arroyo Grande has reviewed
Development Code Amendment 02-002 and Planned Development 02-001 at duly
noticed public hearings on September 2, 2003, October 7, 2003, and October 21, 2003 in
accordance with the Development Code of the City of Arroyo Grande at which time all
interested persons were given the opportunity to be heard; and
WHEREAS, the City Council of the City of Arroyo Grande has considered Development
Code Amendment 02-002 and Planned Development Amendment 02-001 at a duly
noticed public hearing on November 25, 2003, in accordance with the Development Code
of the City of Arroyo Grande at which time all interested persons were given the
opportunity to be heard; and
WHEREAS, the City Council has reviewed and considered the information and public
testimony presented at the public hearings, staff reports, and all other information and
documents that are part of the public record; and
WHEREAS, the City Council finds, after due study, deliberation and public hearing, the
following circumstances exist:
- -- --------~-------
a _...,,,..,,.,......__..,,_..,,'........,,,__
ORDINANCE NO.
PAGE 2
A. Base~ on the information contained in the staff report and accompanying
matenals, the proposed Development Code Amendment amending the Zoning
Map and Planned Development Amendment amending PD 1.5 are consistent
with the goals, objectives, policies and programs of the General Plan is
necessary and desirable to implement the provisions of the General Plan.
B. The proposed Development Code Amendment amending the Zoning Map and
Planned Development Amendment amending PD 1.5 will not adversely affect the
public health, safety, and welfare or result in an illogical land use pattern.
C. The proposed Development Code Amendment amending the Zoning Map and
the Planned Development Amendment amending PD 1.5 are consistent with the
purpose and intent of the Development Code. Medium High Density residential
development within the project area would be required to meet development and
design standards under the MF zoning designation that insure orderly
development.
D. The potential environmental impacts of the proposed Development Code
Amendment amending the Zoning Map and Planned Development Amendment
amending PD 1.5 are insignificant or can be mitigated to a less than significant
level.
NOW, THEREFORE, BE iT ORDAINED by the City Council of the City of Arroyo Grande
as follows:
SECTION l' The above recitals and findings are true and correct.
SECTION 2' The subject property, specifically described as "Lot 17 of Pismo Beach
Gardens, recorded in' Book 3 Page 45 of maps lying within the City of Arroyo Grande,
County of San Luis Obispo, State of California" is hereby included within P-D-1.5, and
shall be developed in accordance with the development plans and conditions of approval
for Vesting Tentative Tract Map 2310 (Farroll Estates).
SECTION 3' Development Code Section 16.24.020 (Zoning Map) is hereby amended as
shown in Exhibit A attached hereto and incorporated herein by reference.
SECTION 4' If any section, subsection, subdivision, paragraph, sentence, or clause of
this Ordinance or any part thereof is for any reason held to be unlawful, such decision
shall not affect the validity of the remaining portion of this Ordinance or any part thereof.
The City Council hereby declares that it would have passed each section, subsection,
subdivision, paragraph, sentence, or clause thereof, irrespective of the fact that anyone
or more section, subsection, subdivision, paragraph, sentence, or clause be declared
unconstitutional.
SECTION 5' Upon adoption of this Ordinance, the Director of Administrative Services
shall file a Notice of Determination.
- .---.
'. '''.'".....-.--........".. ..,.~.,.-.--
ORDINANCE NO.
PAGE 3
SECTION 6. A summary of this Ordinance shall be published in a newspaper published
and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council
meeting at which the proposed Ordinance is to be adopted. A certified copy of the full
text of the proposed Ordinance shall be posted in the office' of the Director of
Administrative Services/Deputy City Clerk. Within fifteen (15) days after adoption of the
Ordinance, the summary with the names of those City Council Members voting for and
against the Ordinance shall be published again, and the Director of Administrative
Services/Deputy City Clerk shall post a certified copy of the full text of such adopted
Ordinance.
SECTION 7: This Ordinance shall take effect thirty (30) days after its adoption.
On motion by Council Member , seconded by Council Member ,
and by the following roll call vote to wit:
AYES:
NOES:
ABSENT:
the foregoing Ordinance was adopted this 9th day of December 2003.
--~---
. ...._",. ..,.."......__.._._n.'.,..___
ORDINANCE NO.
PAGE 4
TONY M. FERRARA, MAYOR
ATTEST:
KELLY WETMORE, DIRECTOR OF ADMINISTRATIVE SERVICESI
DEPUTY CITY CLERK
APPROVED AS TO CONTENT:
STEVEN ADAMS, CITY MANAGER
APPROVED AS TO FORM:
TIMOTHY J. CARMEL, CITY ATTORNEY
. . ------. .. -- -
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8.h.
MEMORANDUM
TO: CITY COUNCIL
FROM: DON SPAGNOLO, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER ~
SUBJECT: CONSIDERATION OF APPROVAL OF FINAL PARCEL MAP AG 03-
0111; SUBDIVIDING ONE (1) PARCEL INTO TWO (2) PARCELS; 159
PINE STREET
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the Council approve Final Parcel Map AG 03-0111, subdividing 0.35
acres into two (2) lots.
FUNDING:
There is no fiscal impact at this time.
DISCUSSION:
The City has received Final Parcel Map AG 03-0111, owned by Keith and Tamara
Slocum. The subject parcel is located at 159 Pine Street. This map subdivides
approximately 0.35 acres into two (2) lots. This is consistent with the approved
Tentative Parcel Map 03-0111, approved by the Planning Commission on July 15th,
2003. The current zoning for the property is Single Family (SF).
ALTERNATIVES:
The following alternatives are provided for the Council's consideration:
. Approve staff's recommendation;
. Do not approve staff's recommendation;
. Modify as appropriate and approve staff's recommendation; or
. Provide direction to staff.
Attachment: Exhibit 1 - Parcel Map AG-03-0111
- -- --- --------.-------
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9.a.
CITY OF ARROYO GRANDE
CITY COUNCIL
NOTICE OF PUBLIC H'EARING
NOTICE IS HEREBY GIVEN that a Public Hearing will be held by the City Council of the City of
Arroyo Grande on the following item: CONSIDERATION OF ORDINANCE AMENDING THE
REDEVELOPMENT PLAN FOR THE ARROYO GRANDE REDEVELOPMENT PROJECT.
APPLICANT: City of Arroyo Grande
PROPOSAL: The City Council will consider a proposed Ordinance amending the
Redevelopment Plan for the Arroyo Grande Redevelopment Project
to extend by one (1) year the time limits required pursuant to
paragraphs (2) and (3) of subdivision (a) of Section 33333.2 of the
California Health and Safety Code. The enactment of the Ordinance
is exempt from the California Environmental Quality Act (CEQA)
pursuantto Section 15378(b)(4) because it is a fiscal activity which
does not fnvolve any commitment to any specific project which may
result in a potentially significant physical impact on the environment.
REPRESENTATIVE: City Manager
Any person affected or concerned by the proposal may submit written comments to the Office of
the City Manager before the City Council hearing, or appear and be heard in support of or.
opposition to the proposal at the time of the hearing.
Any person interested in the proposal can contact the City Manager's Office at 214 E. Branch
Street, Arroyo Grande, California, or by telephone at (805) 473-5404 during normal business
hours (8:00 a.m. to 5:00 p.m.). The proposal will be available for public inspection at the above
address.
If you challenge an item in court, you may be limited to raising only those issues you or
someone else raised at the Public Hearing described in this notice, or in written correspondence
delivered to the City Council at, or prior to, the Public Hearing.
Failure of any person to receive the notice shall not constitute grounds for any court to invalidate
the action of the legislative body for which the notice was given.
Date and Time of Hearing: TUESDAY, DECEMBER 9, 2003 AT 7:00 P.M.
Place of Hearing: Arroyo Grande City Council ~hambers
215 E. Branch Street
Arroyo Grande, California 93420
, ~ uJL~fLL-
Kelly W orJ" ,
Director of Administrative Services/Deputy City Clerk
Publish 1 time, Friday, November 28,2003
---~.-._.-~------- ~- ------- - -~------~.~
MEMORANDUM
TO: CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER~
SUBJECT: CONSIDERATION OF ORDINANCE AMENDING THE
REDEVELOPMENT PLAN TO EXTEND THE TERM OF THE
REDEVELOPMENT PLAN BY ONE YEAR
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council introduce the attached Ordinance, which will
amend the Redevelopment Plan to extend the term of the Plan by one year.
FUNDING:
There is no direct cost impact to the City from this action. It will ultimately result
in one additional year of tax increment revenue to the Redevelopment Agency.
DISCUSSION:
The City Council activated the Redevelopment Agency by City Ordinance No.
479 C.S. on August 27, 1996. In May of 1997, the Agency adopted the
Redevelopment Plan for the Arroyo Grande Redevelopment Project Area by City
Ordinance No. 487 C.S. A Redevelopment Plan is enacted for a period of 30
years.
Over the past two years, the State has transferred tax increment funds from local
redevelopment agencies to the Educational Revenue Augmentation Fund
(ERAF). As an apparent means of compensating agencies for these funds, SB
1045 established the ability for cities to extend the term of a Redevelopment Plan
by one year on a one-time basis without having to conduct many of the steps that
would otherwise be necessary.
While staff does not feel this provision justifies the State's actions in taking local
revenues, it is to the City's benefit to take advantage of this opportunity.
Therefore, approval is respectfully recommended.
S:\CITY MANAGER\STEVE\Council Reports\12.9.03 Extension ofRDA.doc
CITY COUNCIL
ORDINANCE EXTENDING REDEVELOPMENT PLAN BY ONE YEAR
DECEMBER 9, 2003
PAGE 2
AL TERNA TIVES:
The following alternatives are provided for the Council's consideration:
- Introduce the Ordinance;
- Amend and introduce the Ordinance;
- Continue item and direct staff to provide additional information;
- Provide direction to staff.
- ------ -----~~--
7_m.___._"_.""."_"~,.,","__
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF ARROYO GRANDE AMENDING THE
REDEVELOPMENT PLAN FOR THE ARROYO GRANDE
REDEVELOPMENT PROJECT PURSUANT TO HEALTH
AND SAFETY CODE SECTION 33333.2(c)
WHEREAS, the Redevelopment Plan for the Arroyo Grande Redevelopment Project
(the "Project") was adopted by Ordinance No. 487 C.S. on June 10, 1997; and
WHEREAS, the Redevelopment Plan (the "Plan") for the Project authorizes the
collection of tax increment as provided for in Health and Safety Code Section 33670;
and
WHEREAS, California Health and Safety Code Section 33333.2(c) established as an
urgency statute under SB 1045, Chapter 260, Statutes of 2003 ("SB 1 045") provides in
pertinent part:
When an agency is required to make a payment pursuant to
Section 33681.9, the legislative body may amend the
redevelopment plan to extend the time limits required
pursuant to paragraphs (2) and (3) of subdivision (a) by one
year by adoption of an ordinance. In adopting this
ordinance, neither the legislative body nor the agency is
required to comply with Section 33354.6, Article 12
(commencing with Section 33450), or any other provision of
this part relating to the amendment of redevelopment plans;
and
WHEREAS, the Agency shall make a payment during the 2003-04 fiscal year pursuant
to Section 33681.9; and
WHEREAS, the City Council has determined to take advantage of SB 1045 and adopt
an ordinance which extends by one (1) year the time limits required pursuant to
paragraphs (2) and (3) of subdivision (a) of Section 33333.2 of the California Health and
Safety Code; and
WHEREAS, the enactment of this Ordinance is exempt from the California
Environmental Quality Act (Public Resources Code Section 21000 et seq.) ("CEQA")
pursuant to CEQA Guidelines Section 15378(b)(4) because it is a fiscal activity which
does not involve any commitment to any specific project which may result in a
potentially significant physical impact on the environment.
-------
ORDINANCE NO.
PAGE 2
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Arroyo
Grande as follows:
1. Subsection 7 of Section 602 of the Plan is amended to read as follows:
As provided for in Section 33333.2(a)(3) in the CCRL, the
Agency shall not repay indebtedness with the proceeds of
property taxes received pursuant to Section 33670 of the
CCRL after the latest time allowable under S81 045 for the
repayment of indebtedness, which, for reference purposes,
will be treated as forty-six (46) years from the date of
adoption of the Redevelopment Plan. After the time limit
established pursuant to this paragraph, the Agency may not
receive property taxes pursuant to Section 33670 of the
CCRL.
2. The first paragraph of Section 900 of the Plan is amended to read as follows:
Except for the nondiscrimination and nonsegregation
provisions (which shall run in perpetuity), or the obligation to
,repay any indebtedness as provided in Sections 601 and
602, the provisions of this Plan and other documents
formulated pursuant to the Plan may be made effective for
the longest period allowable pursuant to S8 1045, which, for
reference purposes, will be treated as the thirty-first (31st)
anniversary of june 10, 1997, the date of adoption of the
Plan by the City Council. Provisions in documents providing
for the payment or repayment of indebtedness may be made
effective for the longest time legally allowable, as provided
for in Section 33333.2(a)(1 )(A) and (8) of the CCRL, for the
purpose of repaying in full all bonds, obligations, and
indebtedness of the Agency to the extent required by law.
3. Except as amended herein, the Plan shall remain in full force and effect
accordiog to its terms.
4. All required proceedings and considerations precedent to the adoption of this
Ordinance have been regularly taken in accordance with applicable law.
5. The Director of Administrative Services/Deputy City Clerk is hereby authorized to
file a Notice of Exemption with the County of San Luis Obispo pursuant to CEQA
Guidelines Section 15094.
.,----.-
ORDINANCE NO.
PAGE 3
6. A summary of this Ordinance shall be published in a newspaper published and
circulated in the City of Arroyo Grande at least five (5) days prior to the City
Council meeting at which the proposed Ordinance is to be adopted. A certified
copy of the full text of the proposed Ordinance shall be posted in the office of the
Director of Administrative Services/Deputy City Clerk. Within fifteen (15) days
after adoption of the Ordinance, the summary with the names of those 'City
Council members voting for and against the Ordinance shall be published again,
and the Director of Administrative Services/Deputy City Clerk shall post a
certified copy of the full text of such adopted Ordinance. This Ordinance shall
take effect and be in full force and effect thirty (30) days after its passage.
On motion by Council Member , seconded by Council Member
, and on the following roll-call vote:
AYES: .
NOES:
ABSENT:
The foregoing Ordinance was passed and adopted this _ day of January, 2003.
,
ORDINANCE NO.
PAGE 4
TONY M. FERRARA, MAYOR
ATTEST:
KELLY WETMORE, DIRECTOR OF ADMINISTRATIVE SERVICESI
DEPUTY CITY CLERK
APPROVED AS TO CONTENT:
STEVEN ADAMS, CITY MANAGER
APPROVED AS TO FORM:
STRADLING YOCCA CARLSON & RAUTH,
A PROFESSIONAL CORPORATION
AGENCY SPECIAL COUNSEL
9.b.
CITY OF ARROYO GRANDE
CITY COUNCIL MEETING
NOTICE OF CONTINUED PUBLIC HEARING
NOTICE IS HEREBY GIVEN that a continued Public Hearing will be held by the City Council of the City of
Arroyo Grande to consider the following item: DEVELOPMENT CODE AMENDMENT NO. 03~006
APPLICANT: City of Arroyo Grande
LOCATION: Vicinity of Traffic Way and Station Way, City of Arroyo Grande
PROPOSAL: Consideration of a proposed Ordinance amending the Zoning Map and portions of
Title 16 of the Arroyo Grande Municipal Code to rezone a portion of the Highway
Commercial, General Commercial and Village Mixed Use Districts to Traffic Way
Mixed Use, and revising Design Overlay 2.11 to establish Design Guidelines and
Standards including requirements affecting auto-related and visitor serving uses and
shared parking Io'cations.
ENVIRONMENTAL
DETERMINATION: The proposed activity is within the scope of the Program EIR prepared for the 2001
General Plan Update.
REPRESENTATIVE: Rob Strong, Community Development Director
Any person affected or concerned by these proposals may submit written comments to the Community
Developme'nt Department before the City Council hearing, or appear and be heard in support of or opposition
to the proposals at the time of hearing.
Any person interested in the proposal can contact the Community Development Department, located at 214
E. Branch Street, Arroyo Grande, California, or by telephone at (805) 473-5420 during normal business
hours (8:00 a.m. to 5:00 p.m.). The proposal will be available for public inspection at the above address.
If you challenge an item in court, you may be limited to raising only those issues you or someone else
raised at the public hearings described in this notice, or in written correspondence delivered to the City
Council at, or prior to, the public hearings.
Failure of any person to receive the notice shall not constitute grounds for any court to invalidate the
action of the legislative body for which the notice was given.
Date and Time of Hearing: TUESDAY, DECEMBER 9,2003 AT 7:00 PM
Place of Hearing: Arroyo Grande City Council Chambers
215 E. Branch Street
,Arroyo Grande, California 93420
. ~e1. / {Aldlttv'l'LR-
,
Kelly etm~e
Director of Administrative Services/Deputy City Clerk
Publish 1T, 1/8 page, Friday, November 28,2003
-
MEMORANDUM
TO: CITY COUNCIL
FROM: ROB STRONG, COMMUNITY DEVELOPMENT DIRECTO~
BY: TERESA MCCLISH, ASSOCIATE PLANNER
SUBJECT: CONSIDERATION OF DEVELOPMENT CODE AMENDMENT 03-006
PROPOSED ORDINANCE AMENDING THE ZONING MAP AND
PORTIONS OF TITLE 16 OF THE ARROYO GRANDE MUNICIPAL CODE
FOR THE TRAFFIC WAY AND STATION WAY AREA INCLUDING
TRAFFIC WAY MIXED USE DISTRICT AND REVISING DESIGN
GUIDELINES AND STANDARDS FOR DESIGN OVERLAY DISTRICT D-
2.11
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council introduce an Ordinance amending the Zoning Map and
portions of Title 16 of the Arroyo Grande Municipal Code rezoning a portion of the Highway
Commercial, General Commercial and Village Mixed Use Districts to Traffic Way Mixed
Use District and amending the Design Guidelines and Standards for Design Overlay
District D-2.11.
FUNDING:
There is no fiscal impact related to this item.
DISCUSSION:
Backaround
This is a continued public hearing item from the October 14, 2003 City Council meeting.
The Planning Commission initiated Development Code Amendment 03-006 on August 5,
2003 as part of the Citywide Development Code Update. Staff conducted a workshop with
business and property owners in the vicinity of Traffic Way on August 17, 2003. The
Architectural Review Committee and Planning Commission considered the proposed
Development Code Amendment on September 8 and 16, and October 6, 7 and 20, and
December 2, 2003. As a result, they concluded recommendations for the Traffic Way
Mixed Use (TMU) zoning' district, including appropriate permitted and conditional uses,
development standards and the Design Overlay District (D-2.11) Traffic Way and Station
Way Guidelines and Standards (please refer to Attachments 1 - 4).
Amendments to Municipal Code:
The proposed TMU district is shown in Exhibit "A", and revisions to the Development Code
are contained in Exhibit "B" of the proposed Ordinance. Changes from the previous
proposal presented to City Council on October 14, 2003 are shown in italics.
CITY COUNCIL
DEVELOPMENT CODE AMENDMENT 03-006
DECEMBER 9, 2003
PAGE 2
1. Chapter 16.08 - incorporation by reference to the Design Guidelines and Standards
for Traffic Way and Station Way. This is an additional text change to be included in
the Ordinance, Section 16.08.010 - Repealing the 1994 Design Guidelines for
Traffic Way and including Design Guidelines and Standards for the Vicinity of Traffic
Way and Station Way as amended.
2. Chapter 16.24 entitled "Zoning Districts Designated" - designates the Traffic Way
Mixed Use (TMU) district. No changes from previous proposal.
3. Chapter 16.36 Commercial and Mixed Use Districts -permitted uses and
development standards have been developed for the proposed TMU district. No
residential density allocation is designated. However, live-work units are allowable
at a density determined through discretionary action. Regarding development
standards; building height remains at 30 feet, but allows three-stories with a 36 foot
maximum height available for visitor serving uses as determined through
discretionary review. A setback range is depicted instead of a minimum yard
requirement with exceptions available for outdoor storage and existing restrictions
for mixed use lots that are adjacent to residences. Lot coverage and floor area ratio
has been increased. (Note: eventually, after Development Code amendments have
been processed for the other commercial districts, the current tables will be entirely
replaced with the adopted version.)
The changes from the previous proposal include the following additional
recommendations to further address issues of the interface between auto-retail
uses and neighboring residences:
. Table 16.36.020.-D - Numbers 5 and 6 will include entire text of
16.36.020.1.1.
. 16.36.020.1.1. - URless sfJesified differeRtly iR SeGtioR 16.36.020, Wherever a
lot in any commercial or mixed use district abuts a residential use or a lot in
any residential use district, a minimum building setback of twenty (20) feet
measured from the property line shall be required.
. 16.36.020.1.2. - Commercial oroiects within the Mixed-Use district shall be
subiect to aoolicable orovisions of Mixed Use Proiects contained in Section
16.48.065.A in order to achieve comoatibilitv within the district.
4. Chapter 16.52 Specific Use Standards - revision of standards for Automobile
dealerships. This section was not previously included in the ordinance. The
proposed changes are:
. 16.52.060.3. Vehicle Display Areas. A minimum teR (10) foot I Landscape
and/or decorative curb strip~ shall be provided along the street frontage
perimeter of all vehicle display areas. Width of strio and ~final design
treatment shall be subiect to review and aooroval bv the architectural review
committee. An parkiFIg areas Ret llSfJd fer vehiGle display shall be subjeGt to
app.'iGsble SGF89F1iF1g requiremeRts.
CITY COUNCIL
DEVELOPMENT CODE AMENDMENT 03-006
DECEMBER 9, 2003
PAGE 3
. Insert No. 4 Screenina. The site. includina oarkina areas not used for
vehicle disolay. shall be subiect to aoolicable screenina reauirements in
Section 16.48.130. Landscaoina is subiect to Architectural Review
Committee aooroval and shall effect the reauired screenina for interior side
and rear yards abuttina a residential district or use within five years of oerrnit
issuance.
. ~ 5. Lighting. All lighting shall comply with the provisions of Section
16.48.090 with sDecial consideration for nearby residential uses.
Desian Guidelines and Standards
The ARC continued their discussion on the proposed Design Guidelines and Standards at
a special meeting on October 20, 2003. Their recommendations included the following:
1. The design era should be 1920's to 1950's (instead of up to the 1970's)
2. Include as a descriptive architectural styles in the introduction Traffic Way Section;
Historic Route 66 style buildings and elements of architectural styles such as "Art-
Deco" "Streamline Moderne".
3. Under the Special Considerations heading for the Section on Traffic Way, text
revision; "permitted uses shall be limited to visitor serving uses, iRslYding motels,
and related accessory uses" (motels is just one of many visitor serving uses).
4. Strike the subheadings Materials and Colors under Building Design, and Location
under Signs.
5. Replace photo of Mobil gas station with another photo.
Additional changes by staff included a drawing of a fa~de example, and additional
photographs to provide examples of buildings that incorporate some of the proposed
architectural elements.
The Planning Commission voted to keep the language in No. 3 above relating to motels.
Additionally, the Commission requested that language be removed relating to the
prohibition of off-street parking that requires backing onto a public street in case the
statement interferred with shared and/or angled parking facilitation. Lastly, the number of
colors used on signs is not limited in the Traffic Way area.
Traffic Comission
Public Comment during the workshop and public hearings on the proposal included
concerns about traffic in the vicinity of Traffic Way. Citizens living near the Traffic Way
Corridor expressed several traffic related concerns, particularly near Allen Street. Given
that the proposal allows for the potential expansion of the existing auto-retailers on Traffic
Way, traffic circulation patterns in the vicinity may be further altered. Additionally, the
Traffic Way Enhancement Plan Map appended to the proposed Design Guidelines and
Standards (Attachment 1) show potential for shared parking opportunities in that area.
Traffic and parking issues were refferred to the Traffic Commission, which heard the item
at the November 17, 2003 meeting. Draft alternatives consistent with the Traffic Way
CITY COUNCIL
DEVELOPMENT CODE AMENDMENT 03-006
DECEMBER 9, 2003
PAGE 4
Concept Plan, including the potential for the closure or one-way treatment for Allen Street,
were presented and public comment received. The traffic and circulation issues will
continue to be addressed at future Staff Advisory Committee and Traffic Commission
meetings.
Public Comment
Staff held a public workshop for business owners and the public on August 17, 2003 to
facilitate discussion and receive public input on preliminary concept plans. On September
5, 2003, 285 notices were mailed out to owners of properties within 300 feet of the area
proposed for amendment. Additional public comment was heard at the Planning
Commission meetings of September 16, and October 7, and December 2, 2003 and City
Council meeting of October 14, 2b03. The proposal was re-noticed with a display ad on
Friday, November 28,2003 in the Times Press Recorder and 285 notices were mailed out
to surrounding property owners.
Environmental Determination
The proposed change of zone and revisions to Title 16 are within the scope of the Program
EIR prepared for the 2001 General Plan Update and the potential environmental impacts
of the proposed amendments and determined less than significant.
AL TERNA TIVES:
The following alternatives are presented for Council consideration:
- Introduce the Ordinance;
- Continue consideration of the Ordinance; or
- Provide direction .tostaffqnd refer back to Planning Commission for review and
comment.
Attachments:
1. Design Guidelines and Standards For Design Overlay District 2.11
2. Current Zoning Map
3. Planning Commission and ARC Staff report, October 6 and 7, 2003.
4. Planning Commission minutes, October 7, 2003
5. City Council minutes, October 14, 2003
6. ARC minutes, October 20, 2003
7. Public Comment letters
8. Section 16.48.065
9. Planning Commission Resolution recommending approval of DCA 03-006
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ARROYO GRANDE AMENDING THE ZONING MAP AND
PORTIONS OF TITLE 16 OF THE ARROYO GRANDE MUNICIPAL
CODE (DEVELOPMENT CODE AMENDMENT 03-006), REZONING
A PORTION OF THE HIGHWAY COMMERCIAL, GENERAL
COMMERCIAL AND VILLAGE MIXED USE DISTRICTS TO TRAFFIC
WAY MIXED USE AND AMENDING THE DESIGN GUIDELINES
AND STANDARDS FOR DESIGN OVERLAY DISTRICT 2.11
WHEREAS, the City Council adopted the 2001 General Plan on October 9, 2001; and
- WHEREAS, Government Code Section 65860 requires a comprehensive review and
necessary revisions to the Development Code and zoning map for consistency with the
General Plan; and
WHEREAS, the City has a responsibility to assure adherence to the General Plan in
meeting the needs and desires of the residents and the community; and
WHEREAS, the City held a public workshop on August 14, 2003 to facilitate public
comment and the City Planning Commission held duly noticed public hearings on
September 16, 2003, October 7, 2003 and December 2, 2003, and recommended certain
amendments to the Development Code concerning the Mixed Use land use designation for
the purposes of General Plan consistency and implementation of its goals and policies;
and
WHEREAS, the City Council has considered Development Code Amendment 03-006 at duly
noticed public hearings on October 14, 2003 and December 9,2003 in accordance with the
Development Code of the City of Arroyo Grande at which time all interested persons were
given the opportunity to be heard; and
WHEREAS, the City Council has reviewed and considered the information and public
testimony presented at the public hearings, Planning Commission recommendations, staff
reports. and all other information and documents that are part of the public record; and
WHEREAS, the City Council finds, after due study, deliberation and public hearing, the
following circumstances exist:
A. The proposed zone change and revisions to Title 16 will satisfy Objective LU5-5 of
the Land Use Element of the General Plan, which requires the City to "define
different Mixed Use overlay or combining designations concurrent with
Development Code revision for General Plan consistency to clarify allowed,
conditionally permitted and prohibited uses in each MU subarea", and; LU5-8 which
states that the Mixed Use corridors are to "provide for different combinations,
configurations and mixtures of commercial, office and residential uses designating
the East Grand Avenue, EI Camino Real and Traffic Way corridors as Mixed Use
(MU)" and is therefore desirable to implement the provisions of the General Plan.
ORDINANCE NO.
PAGE 2
B. The proposed zone change and revisions to Title 16 reflect that both the existing
zones and proposed zones are predominantly commercial, contain historical
residential use, promote continued mixed use and will not adversely affect the
public health, safety, and welfare or result in an illogical land use pattern.
C. The proposed zone change and. revisions to Title 16 satisfy Section 16.36.010 of
the Municipal Code, which states "It is the purpose of this chapter to provide
regulations that implement those goals, objectives and policies" and that are aimed
toward the provision of adequate and appropriate commercial areas within the City".
D. The proposed zone change and revisions to Title 16 are within the scope of the
Program EIR prepared for the 2001 General Plan Update, and the potential
environmental impacts of the proposed amendment are less than insignificant.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Arroyo Grande, as
follows:
SECTION 1: The above recitals and findings are true and correct.
SECTION 2: Arroyo Grande Municipal Code Section 16.24.020 (Zoning Map) is hereby
amended as shown in Exhibit "A" attached hereto and incorporated herein by reference.
SECTION 3: Arroyo Grande Municipal Code Sections set forth hereinbelow are hereby
amended as shown in Exhibit "B" attached hereto and incorporated herein by this reference:
a. Amend Section 16.08.010.A.;
b. Amend Section 16.24.010.C.;
c. Add Subsection F. to Section 16.36.020;
d. Add Table 16.36.020 D.;
e. Existing 16.36.020 subsection F. shall be renumbered as subsection G.
f. Existing 16.36.020 subsection G. shall be renumbered as subsection H.
g. Existing 16.36.020 subsection H. is amended and shall be renumbered as
subsection I.
h. Amend Table 16.36.030-A1 in itsentirety.
it Amend Section 16.52.060 in its entirety.
SECTION 4: If any section, subsection, subdivision, paragraph, sentence, or clause of this
Ordinance or any part thereof is for any reason held to be unlawful, such decision shall not
affect the validity of the remaining portion of this Ordinance or any part thereof. The City
Council hereby declares that it would have passed each section, subsection, subdivision,
paragraph, sentence, or clause thereof, irrespective of the fact that anyone or more section,
subsection, subdivision, paragraph, sentence, or clause be declared unconstitutional.
ORDINANCE NO.
PAGE 3
SECTION 5: A summary of this Ordinance shall be published in a newspaper published
and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council
meeting at which the proposed Ordinance is to be adopted. A certified copy of the full text
of the proposed Ordinance shall be posted in the office of the Director of Administrative
Services/Deputy City Clerk. Within fifteen (15) days after adoption of the Ordinance, the
summary with the names of those City Council Members voting for and against the
Ordinance shall be published again, and the Director of Administrative Services/Deputy
City Clerk shall post a certified copy of the full text of s,uch adopted Ordinance.
SECTION 6: This Ordinance shall take effect thirty (30) days after its adoption.
On motion by Council Member , seconded by Council Member , and
by the following roll call vote to wit:
AYES:
NOES:
ABSENT:
the foregoing Ordinance was adopted this day of .
----.--
ORDINANCE NO.
PAGE 4
TONY M. FERRARA, MAYOR
ATTEST:
KELLY WETMORE, DIRECTOR OF ADMINISTRATIVE SERVICESI
DEPUTY CITY CLERK
APPROVED AS TO CONTENT:
STEVEN ADAMS, CITY MANAGER
APPROVED AS TO FORM:
TIMOTHY J. CARMEL, CITY ATTORNEY
EXHIBIT A
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EXHIBIT B
16.08.010. Incorporation by Reference.
The following documents are incorporated by reference into this title:
A. Design Guidelines and Standards for Historio Di&triots, 1 QQ4 for Design Overlay
District (D-2.11) pertaining to the Traffic Way and Station Way area (as
amended);
16.24.010. Created.
C. Commercial and Mixed Use Districts:
1. General commercial (GC) district;
2. Village core downtown (VCD) district;
3. Village mixed use (VMU) district;
4. Traffic Way mixed use (TMU) district:
42. Office professional (0) district;
9Q. Highway commercial (HC) district.
16.36.020 Commercial and Mixed Use Development Districts and Site
Development Standards.
F. Traffic Way Mixed Use (TMU) District. The primary purpose of the TMU district is
to provide for vehicle sales and services. related retail and office uses and visitor
servina facilities convenient to both freeway traffic and vehicles or pedestrians
from the nearby Villaae'area. Development standards and desian auidelines are
intended to enhance this specialized mix of uses at the southern aateway to
Arroyo Grande which include automobile and small truck sales and service.
eauipment rental. repair and related services. offices. wholesale and retail sales
includina outdoor display. motels. restaurants and limited residential uses
functionina as live-work units. The TMU district implements and is consistent with
the Mixed Use land usecateaorv of the General Plan. See Table 16.36.030-A-1
for allowable uses and Table 16.36.020-D for site development standards. See
Desian Guidelines and Standards (or Desian Overlay District (D-2.11) pertaining
to the Traffic Way and Station Way area for additional reauirements.
I
Exhibit B, Page 1
- -'---,_.~---
Table 16.36.020-D Traffic Way Mixed Use
1. Maximum Density Mixed Use Projects New residential limited to Iive-wor1< units in
conjunction with allowed uses. Density determined
bv discretionary action.
2. Minimum lot Size 10,OOOsauare feet (aross).
3. Minimum lot Width 80 feet
4. Front Yard Setback o - 15 feet. Exceptions may include areas for
outdoor sales determined through discretionary
action.
5. Rear Yard Setback o - 15 feet (1JR!1366 &peGifierJ fliHemntly ill se6lioo
16. 36. ~, Wherever a lot in any commercial or
mixed use district abuts a residential use or a 'lot in
any residential use district, a minimum building
setback of twenty (20) feet measured from the
property line shall be required for proposed
commercial useJ.
6. Side Yard Setback o feet (Unless spe6ilierJ fliffer6ntly ill se6lioo
16. 36.lJ2D, Wherever a lot in any commercial or
mixed use district abuts a residential use or a lot in
any residential use district, a minimum building
setback of twenty (20) feet measured from the
proPerty line shall be required for proposed
commercial use.)
7. Street Side Yard Setback o - 15 feet. Exceptions may include areas for outdoor
sales determined throuah discretionary action.
8. Building Size Limits Maximum height is 30 feet or three stories, whichever
is less; a maximum of 36 feet is allowable through
the CUP process for visitor serving uses.
Maximum Building Size is 50,000 square feet; a
greater size may be allowed through the CUP
proceSs.
9. Site Coverage and Floor Area Ratio Maximum coverage of site that may be covered by
structures and pavement is 75%.
Maximum Floor Area Ratio is .75.
10. Site Design and Signs See Design Guidelines and Standards 0-2.11.
Additional sian standards also in Section 16.60.
11. Off-Street Par1<ing and loading See Design Guidelines and Standards 0-2.11 Exhibit
'A' for shared par1<ing locations. See Also Section
16.56.020. Exceotions allowed bv Section 16.16.120.
~. G. Historic Character Overlay (HCO) District. The primary purpose of the historic
character overlay (HCO) district is to identify, promote, preserve and protect the
historic, cultural, and/or architectural resource values and encourage compatible
uses and architectural design. The architectural review committee is responsible
for advising the community development director on historic, cultural, and/or
architectural component of projects. The historic character overlay district
implements and is consistent with the village core land, use category of the
general plan.
G: H. General Requirements.
1. The creation of new lots within mixed use or commercial districts following
the date of adoption of this title shall conform to the minimum dimensions,
except in the case of condominium lots or individual lots within a shopping
center, in which case minimums shall be established by Conditional Use
Permit and/or subdivision map approval provided:
a. A conceptual development plan for the entire center has been approved
pursuant to the provisions of this title;
Exhibit B, Page 2
b. Appropriate easements for reciprocal access, parking and maintenance
are recorded, and maintained.
Mol Special Requirements Mixed Use and Commercial districts.
1. Unless spooifiod differently in section 16.36.020, Wherever a lot in any
commercial or mixed use district abuts a residential use or a lot in any
residential use district, a minimum building setback of twenty (20) feet
measured from the property line shall be required for proposed commercial
use. A minimum of ten (10) five (5) feet of this setback area shall be
landscaped; the remaining area may be used for required off-street parking.
2. Commercial proiects within the Mixed-Use district shall be subiect to
applicable provisions for Mixed Use Proiects contained in Section 16.48.065
in order to achieve compatibilitv within the district.
3. Unless specified differently in section 16.36.020, in any mixed use or
commercial district, a two-story addition closer than fifty (50) feet to an
existing single-family residence shall require a minor use permit prior to
issuance of a building permit.
4. Where off-street parking areas are situated such that they are visible from
the street, an earthen berm, wall, or combination wall/berm three feet in
height shall be erected within the required landscape area to screen the
parking areas.
5. In all mixed use or commercial districts, required front and street side
building setback areas shall be landscaped. The landscaping shall consist
predominantly of plant materials except for necessary walks and drives. A
minimum landscaped area five (5) feet in depth shall be provided between
the property line and the off~street parking area, with additional landscaped
area between the parking area and the building, unless otherwise approved
by Minor Use Permit.
6. A street side building setback area shall be used only for landscaping,
pedestrian walkways, or driveways. Required rear and interior side building
setback areas shall be used only for landscaping, pedestrian walkways, or
driveways, unless otherwise approved by Minor Use Permit.
Exhibit B, Page 3
_____w___,,_._~~_
Table 16.36.030-A1
Uses Permitted Within Commercial and Mixed Use Districts (Development Code
Update 2003)
Uses Permitted Within Mixed Use and Commercial Districts
VCD = Village Core Downtown
VMU = Village Mixed Use
TMU = Traffic Wav Mixed Use
HCO = Historic Character Overlay District (Design Overlay District 2.4)
P = Permitted Use MUP = Minor Use Permit
CUP = Conditional Use Permit NP = Not Permitted
PED = Not permitted in pedestrian oriented storefront locations
Table 16.36.030-A1
Allowed Land Uses and Permit Required By District Specific Use
Permit Requirements All new commercial buildinos l'fKJuire a Conditional Use Permit. Standards
LAND USE TMU MU-2 MU-4 MU-6 VCD VMU MU-5 MU-3 OP RC
D-
D-2.11 2.11
HCO 0-2.4
A. Services - Business, Financial, Professional
ATM P MUP MUP
Bank MUP MUP MUP
Financial Services
Medical Services - MUP MUPf MUP
doctor's office , PED
Medical Services - clinic, MUP CUPf MUP
lab, urgent care ' PED
Medical - hospital NP NP NP
Office - accessory P MUP MUP
Office - govemment CUP MUP MUP
Office - processing CUP cUP MUP
Office - professional MUP MUP MUP
Veterinary clinic, animal CUP NP CUP
hoscital
B. Services - General
Adult day care - NP MUPf MUP 16.52.120
14 or fewer clients PED
Adult day care - NP NP NP 16.52.120
15 or more clients ,
Automotive and vehicle MUP NP NP 16.52.210
services - Major repair or
bodY work
Automotive and vehicle MUP NP NP 16.52.210
services - minor
maintenance or repair
includina tire services
Catering services MUP MUPf MUP
PED
Child day care center - NP MUPf MUP
14 or fewer PED
Child day care center - tie MUPf MUP 16.52.120
15 or more PED
Drive-thlOllgh services CUP NP CUP
Equipment rental CUP NP CUP
Kennel, animal boarding CUP NP CUP 16.52.100
Exhibit B, Page 4
Allowed Land Uses and Permit Required By District Specific Use
Permit Requirements All new commercial buildinos reauire a Conditional Use Permit. Standards
lAND USE TMU MU-2 MU-4 MU-6 VCD VMU MU-5 MU-3 OP RC
D-
D-2.11 2.11
HCO 0-2."
Lodging-Bed & breakfast MUP MUP MUP 16.52.080
inn
Lodging-Hotel or motel CUP CUP CUP
Lodging-Recreational NP NP NP
Vehicle (RV) Park
Maintenance services- MUP NP MUP
client site services
Mortuary, funeral home NP NP NP
Personal services MUP MUP MUP
Personal services- CUP NP NP 16.52.030
Restricted
Public safety facility f MUPI P
PED
Repair service- MUP NP CUP
Equipment, large
aDDliances, etc.
Social services gJf NP CUP
oraanization
Tele-communication MUP NP CUP
facilities (commercial) -
C. Industry, Manufacturing & Processing, Wholesaling, Storage ,
Agricultural product gJf NP CUP
Drocessina
Construction contractors NP NP NP
Fumiture and fixtures NP NP NP
manufacturing, cabinet
shoo
Industrial research and NP NP NP
develoDment
Laboratory - Medical, CUP NP NP
analytical, research and
develoDment
Manufacturing! NP NP NP
Drocessing - Heavy
Manufacturing or CUP NP NP
Processina - Liaht
Printing and publishing MUP NP NP
Recycling:, scrap and NP NP NP
dismanUina yard
Recycling - Small MUP MUP MUP
collection facility IPED
Storage - Outdoor MUP NP NP
Storage (mini - storage) NP NP NP
Wholesaling and CUP NP NP
distribution
Winery CUP NP NP
D. Retail Trade
Accessory retail uses f P P Subject to
Business
License
clearance
Alcoholic beverage sales CUP CUP CUP
Artisan shop MUP MUP MUP
Exhibit B, Page 5
Allowed Land Uses and Permit Required By District Specific Use
Permit Requirements All new commercial bulldlnos reaulre a Conditional Use Pennlt. Standards
LAND USE TMU MU-2 MU-4 MU-6 VCD VMU MU-S MU-3 OP RC
D-
D-2.11 2.11
HCO 0-2.4
Auto, vehicie and heavy MUP NP NP 16.52.060
equipment sales & rental 16.52.070
Auto, vehicie parts sales MUP NP NP
w/ installation services
Building and landscape MUP CUP CUP
materials sales-indoor
Convenience store MUP MUP MUP
Drive-through retail CUP NP NP
Extended hour retail MUP MUP MUP
Farm supply and feed CUP NP CUP
store
Farmers market MUP MUP MUP
Fuel dealer CUP NP NP
(propane for home and
farm use)
Gas station CUP NP NP 16.52.170
General retail-5,000 sf or MUP P P Subject to
less Business
License
ciearance
General retail- CUP MUP CUP
5,001 to 19,999 sf
General retail- MUP NP NP Note: Maximum
20, 000 sf to 102,500 sf Building Size
per/district and
Section
16.52.220
Groceries, specialty MUP CUP CUP
foods-20, 000 sf or less
Groceries, specialty foods CUP NP NP Note: Maximum
20,000 sfto 102,500 sf Building Size
per/district and
Section
16.52.220
Outdoor retail sales and MUP MUP MUP
activities
Mobile home, boat, or RV CUP NP NP
sales
Produce stand MUP MUP MUP
Restaurant, cafe. Coffee MUP MUP MUP 16.52.180
shoo
Restaurant, drive-through ~ NP NP 16.52.090
fast food
Second hand store NP MUP MUP
Shopping center NP NP CUP
Warehouse retail CUP NP NP 16.52.160
E. Recreation, Education & Public Assembly Uses
Bar/tavern/night ciub CUP CUP CUP
Club, lodge, private MUP MUP CUP
meetina hall
Commercial recreation or MUP CUP CUP
sDOrts facilitv - Indoor
Exhibit B, Page 6
--.-.--
Allowed Land Uses and Permit Required By District Specific Use
Permit Requirements All new commercial bulldinas reauire a Conditional Use Permit. Standards
LAND USE TMU MU-2 MU-4 MU-6 VCD VMU MU-S MU.3 OP RC
D-
D-2.11 2.11
HCO 0-2.4
Commercial recreation or CUP NP CUP
soorts facilitv - Outdoor
Community center CUP CUP CUP
Conferencel CUP CUP NP
convention facilitv
Equestrian facility CUP NP NP
Fitnesslhealth facility CUP CUP CUP
Library, museum CUP MUP MUP
Park, playground CUP CUP CUP
Religious facility CUP CUPI CUP
PED
School- Elementary, NP NP CUP
middle, secondarY
School - Specialized MUP CUPI CUP
educationltraining PED
Studio - art, dance MUP MUP MUP
martial arts, music, etc.
Theater, auditorium NP CUP CUP
F. Residential Uses
Assisted Living NP CUP CUP
Home occupation MUP P P
16.16.090
Livelwork unit CUP CUP CUP
Prohibited in conjunction with restricted personal services and vehicle malntenancel repair. Use
established in new or commercial buildings must comply with appropriate occupancy separation
reauirements of the UBC.
Multi-family housing not NP NP CUP
located within a mixed -
use Droiect
Multi-family housing in a NP MUP MUP
mixed use project IPED
Residential care facility NP MUP MUP
IPEe
Residential care facility, 7 NP CUPI CUP
or more clients PEe
Single family residential NP NP MUP
within a mixed use Drolect -
G. Other uses similar to, and compatible with other uses Identified above, as determined by the Planning Commission,
subject to a Conditional Use Permit or Interpretation
16.52.060. Automobile dealerships.
A. Purpose and Intent. This section is to ensure that automobile dealerships (both new
and used) do not create an adverse impact on adjacent properties and surrounding
neighborhoods by reason of insufficient on-site customer and employee parking, traffic
generation, including road testing of vehicles, obstruction of traffic, visual blight, bright
lights, noise, fumes, or drainage run-offs. The following special conditions shall apply to
automobile dealerships.
Exhibit B, Page 7
1. Applicability. All new automobile dealerships (for both new and used vehicles)
shall comply with the development standards for the district in which they are
located, and with the provisions of this section.
2. Parking. Areas designated for employee and customer parking shall not be used
for vehicle storage or display.
3. Vehicle Display Areas. 1'. minimum ton (10) foot J Landscape and/or decorative
curb strip~ shall be provided along the street frontage perimeter of all vehicle
display areas. Width of strip and ~final design treatment shall be subject to
review and approval by the architectural review committee. 1\11 parking arem. not
used for ':ohiclo display shall be subject to applic3ble soreening requiromonts. '
4. Screenina. The site. includina parkina areas not used for vehicle display. shall
be subject to applicable screenina reauirements in Section 16.48.130.
Landscapina is subject to subject to Architectural Review Committee approval
and shall effect the reauired screenina for interior side and rear yards abuttina a
residential district or use within five years of permit issuance.
45. Lighting. All lighting shall comply with the provisions of Sections 16.48.090 090
with special consideration for nearby residential uses.
aQ. Loading and Unloading of Vehicles. Loading and unloading of vehicles is
permitted, only within the following constraints. The dealership operator is
deemed to be responsible and, liable for any activities of a-common carrier,
operator, or other person controlling such loading or unloading activities, to the
extent any such activities violate the provisions of this subsection.
a. Loading and unloading of vehicles is limited to the hours of eight a.m. to six
p.m. Monday through Saturday, excluding legal holidays.
b. Off-loading shall be on-site, or off-site subject to the approval of the city
engineer. Loading and unloading shall not block the ingress or egress of any
adjacent property.
aZ. Storage of Vehicles to be Repaired. No vehicles to be repaired shall be parked or
stored on any public street or alley.
~. Repair of Vehicles. The repair and service facility portion of any automobile
dealership shall comply with the provisions of Section 16.52.210.
39. Queuing of Vehicles. An adequate on-site queuing area for service customers
shall be provided. The queuing area or lanes shall be large enough to hold at
least one and a half vehicles for each service bay in the facility. On-site
driveways may be used for queuing, but may not interfere with access to required
parking spaces. Regular parking spaces may not double as queuing spaces.
910. Noise Control.
a. There shall be' no outdoor loudspeakers. Interior loudspeakers shall produce
no more than forty-five (45) dBA at a boundary abutting a residential parcel,
under normal operating, conditions (e.g., with windows open if they are likely
to be opened).
b. All noise generating equipment exposed to the exterior shall be muffled with
sound absorbing materials to minimize noise impacts on adjacent properties,
and shall not be operated before eight a.m. or after six p.m. if reasonably
likely to cause annoyance to abutting residences.
c. Rooftop storage areas shall ,be screened with landscaping or noise absorbing
materials to minimize noise impacts on adjacent properties.
Exhibit B, Page 8
Wll. Toxic Waste and Storage and Disposal. Gasoline storage tanks shall meet all
applicable state and local health regulations, and shall be constructed and
maintained under the same conditions and standards that apply to service
stations.
Exhibit B, Page 9
Attachment 1
Design Guidelines and Standards for Design Overlay
District (D-2.11) - Traffic Way and Station Way
TRAFFIC WA Y
Purpose of this Design Overlay
District
The primary purpose~ and aoals of this
district is are to encourage the use of
design that will not detract from the
neighboring Village districts and to
enhance the character and appearance
of this southern commercial aateway to
Arroyo Grande from Freeway 101.
Although Much of the existina
development in the area is modern,
there are many buildinas and sites
reflectina the former hiahway route. prior
to Freeway 101. from the 1920's
throuah 1950's. Thoro aro also a
significant numberof historic struoturos
in the design ovorlay district. The intent
of these guidelines and standards is to
protect the best examples of these
existing historic period buildings, and to
enhance the character of this major
entrance to the Gity Village. There is no
one proper architectural style, but the
desian element and "automobile aae"
character of this era and the use of
elements or scale found in adjacent
buildings is encouraged. Examples
include.-historic "Route 66" style buildina
elements and architectural styles such
as "Streamline Moderne" and "Art
Deco". Examples of such elements are
shown in photoaraphs at the end of this
section.
Page 1
------- -_._~
'~_O_.___.."".N_'''''_
Guidelines and Standards andlor property confiauration and
conditions.
SDecmlConsideraUons
A Concept Enhancement Plan is Site Design
included in Attachment "A" to facilitate 1. All new projects or renovations shall
the aoals for the district. The Plan adhere to site development standards of
shows areas planned for auto retail the Development Code.
uses. visitor servina uses and shared
parkina. 2. Buildinas and sales uses shall be
oriented to the public street while
1. Alona a portion of the east side of service. storaae and accessory uses
Station Way. both sides of Traffic Way. shall be oriented away from the street to
and alona the south side of Fair Oaks interior areas of the site.
Avenue between Freeway 101 and
Traffic Way (APN's 007-483-009. 010, 3. All accessory outbuildings structures
011. 033. 039. and 040: 007-542-007. or functions, including garages off-street
015.021. and 023: 007-594-017.018. parkina. service buildinas and
027. and 029), permitted use shall be enclosures for service areas, trash
limited to automobile and liaht truck containers or outdoor storage should
sales and services. or related shall be designed as part of the overall
automotive parts stores. repair shops. project or building. Matorials"toxturos
and similar vehicle sales. services and and colors should bo consistont '::ith
accessory uses. those of tho pr-oposed projoct and 'Nith
adjacent buildings.
All other Permitted uses and Minor Use
Permitted uses shall be considered 4. Landscaping should retain existing
subiect to Conditional Use Permit. trees and plants as much as pos&iblo
includina a findina that vehicle sales and and add feature areas or strips of
services and lor the similar related uses plantina to achieve screenina or
prescribed are not feasible due to site softenina of buildina and outdoor display
specific buildina andlor property areas visible from public streets. Street
confiauration and conditions. trees or side'lJalk plantors should shall
be incorporated where feasible and
2. On the southeast of the intersection pedestritm functional circulation will not
of E. Cherry Avenue and Traffic Way be obstructed. If Street trees eF and
(APN's 007-621-001 and 007-621-073), sidewalk planters aFe within the public
permitted use shall be limited to visitor right of way, it is noco&sary to obtain
servina uses. includina motels. and and Encroachment Pormit from the
related accessory uses. Public '.^.'orks Department should be
supplemented with private street yard
All other Permitted uses and Minor Use plantina. landscape strips or feature
Permitted uses shall be considered areas to enhance appearance and
subiect to Conditional Use Permit. encouraae outdoor uses.
includina a findina that visitor services is
not feasible due to site specific buildina
Page 2
e-,---"._ ,_,.."'_____.~,_"""'_._.........
5. Streetscape improvements 6hould 2. Alona both sides of Traffic Way and
shall match conform to the existing the south side of Fair Oaks Avenue.
established sidewalk paving, lighting buildina material textures and colors
schome6 and street furniture, fixture and shall be consistent with the character of
feature desians approved by the City. the best examples of "automobile aae"
unles6 tho new oloment introducod is (1920's throuah 1950's) buildinas in the
moro consi6tont with the oharacter of area. On side streets east of Traffic Way
the di6trict th::m ar~ oxisting eloment. adioining Villaae Mixed Use District (D-
2.4) the buildina materials. textures and
6. The desired confiaurations and colors. as well as architectural character
locations for off-street parkina lots. in should transition to Historic district
order of preference. are: desian auidelines and standards.
a. Double loaded aisle to side or rear includina elements of both eras.
of buildina on-site.
b. Shared double loaded aisle to side 3. The height, lot coveraae and floor to
or rear of buildina partially on-site area ratio of new buildings shall not
and part off-site on neiahborina exceed the development standards
parcel. allowed in Title 9 16 of the Municipal
c. Shared off-site or public parkina Code (Development Code) for the TMU
lot within 200 feet. district. unless the project adjoins the
d. Sinale or double loaded aisle in VMU district in which case those
front of buildina(s). standards may be allowed.
In no caso shall off stroot 6paces roauire 4. To the extent feasible. oriainal
baokina onto a publio street. structures and materials. and
architectural details should be intearated
Building Design into proiect desian and retained.
Materials and Colors renovated. or replaced with materials
1. Buildinas shall be one to-twe three and features that match or reflect the
stories. small to moderate scale. have ' oriainal desian.
horizontal massina and include both
pedestrian and vehicle-oriented features Construction, Materials
evident from public streets. particularly
Traffic Way.
1. Renovation6 should usa the
2. Now'buildings or ronovationE shall original matorials as much as possible.
adhoro to lot oo'/erago and ftoorarea
ratio requiremontE of tho Devolopment 2. Original docorative dotail6 should
Codo, unla66 a Variance is approvod. bo retained during ronovations. If tho
original materials have deteriorated and
3. New conEtruction should includo must bo r-omo'lod, they should be
elements common to adjacent historic replaced '.vittl matorial6 that match the
doi.'elopment Euch aE oladding typo, original in d06ign, color ::md textur~.
roofing material, roof 6tructUro and
ornament::ition. ~ 5. Construction materials should be
compatible with those used on adjacent
Page 3
. ..... -." ._~..,.,..._-,,~,~....-
developments. New buildings should Size
incorporate traditional materials, but
should not attempt, to blend with the 1. All signago is included in the sign
mdsting environmont by ill pretendiRg to area allowod in tho DO'lelopment Codo.
be historic. Victorian 9f period details This includes ,,:indo':! and a'A'ning signs,
should not be used when not in context and includos logos and graphic
with the building. represontations that idonti~' tho
Building Colors businoss, product sold, or servico
offered. However. because of the
uniaue nature. multiole functions and
~. The number of colors used on a soecial characteristics of the
building or project should be kept to a combination of new and used car. truck
minimum, genorally threo or fewor., +Ris and/or other vehicle and related retail
would incorporate to include a base and accessory uses. the aooroval of
color, trim color and singlo accent Minor Use Permits or Conditional Use
color~. Permits may include desian exceotions
includino heioht. size and total area of
~7. \I'lhen plot plan revio'..: or a sionaoe allowed.
Conditional Use Pormit is roquired,
GColor and materials samples should 2. '.^lindov.' signs shall not excood twenty
shall be submitted as part of the percent (20 of the 'Nindo'l.' aroa in which
oermittino process. The use of limited they appear.
florescent, "neon" or "day-glo" colors on
building facades is not appropriato may Location
be allowed if used to deoict the
"automobile aoe" era. 1. Signs should be located
3-:8. Color palettes should be compatible symmetrically in relation to fac;ade bays
and should not obstruct architectural
with those of adjoining buildings. features of the building.
Signs 2. Wall signs should be located above
the entry to the building to better relate
General to pedestrian traffic.
4-:- Sign~ shall be architecturally 3. Window and door signs should be
inteorated, meet all requirements of the applied where they will not obstruct
Development Code and the provision of visibility.
these guidelines and standards. If a 4. Signs on awnings or canopies should
conflict arisos bet\Yeen tho roquirements
of the DevelopmoRt Codo and these be placed where they may be seen by
guidelines, exists, the most restrictive pedestrians as well as by passing traffic.
requirements shall apply.
2. Signs may be subject to review by the
Architectural Advisory Committoe bofore
approval of a sign permit.
Page 4
" ....<, ~,...."",._.,.,~.,,...",---
Examples of Architectural Elements
VERTICAL
MOLDINGS CORNICE
ORNAMENTAl ENTRANCE PROJECTING
lINEWORIC ONWINIOWS DOOR PEDESTRIAN SIGN
_of_.kllI
Example of a fafiade that incorporates
Streamline-Modern style architecture
Example of art deco inspired architecture:
Former Volkswagen Showroom Building (circa
1937),
Maple and Olympic Boulevard, South Beverly
Hills
........
Typical art deco inspired architecture:
Greyhound Depot in Ohio (courtesy Andrew
Wood)
Page 5
"__'_'",,_,"_0'_';,<__,__
All other Permitted uses and Minor Use
Station Way Permitted uses shall be considered
subiect to Conditional Use Permit.
PurlJose of this Desian Overlav includina a findina that visitor services is
District not feasible due to site specific building
and/or property confiauration and
The primary purposes of this district are conditions.
to encourage the use of design that will 2. A shared parkina facility should
complement the neighboring Village be considered at the interior
districts and provide a transition portion of the parcels located at
between these districts and the Traffic 208.210 and 216 Traffic Way
Way corridor. The predominant design (APNs 007-483-41, 42 and 7).
for the Station Way area are wood-sided
or smooth plaster single and two-story Site Desian
structures with green ribbed metal roofs 1. All new proiects or renovations shall
as depicted by the Village Promenade. adhere to site development standards of
the Development Code.
2. Buildinas and sales uses shall be
oriented to the public street while
storaae. parkina and accessory uses
shall be oriented away from the street to
interior areas of the site.
3. All accessory structures includina off-
street parkina. service buildinas and
enclosures for service areas. trash
containers or outdoor storaae shall be
desianed as part of the overall proiect or
SlJec~/Consideraffons buildina.
A Concept Enhancement Plan is 4. Landscapina should retain existina
included in Attachment "A" to facilitate trees and add feature areas or strips of
the aoals for the district. The Plan plantina to achieve screenina and
shows areas planned for visitor servina softenina of structures and parkina and
uses and shared parkina. hiahliaht pedestrian walkways and
1. Southeast of the intersection of public areas. Street trees shall be
incorporated where functional circulation
E. Grand Avenue and Freeway will not be obstructed.
101. on the parcel behind the
Chevron Station (APN 5. Streetscape improvements shall
007.481.006) permitted use shall conform to the established sidewalk
be limited to visitor servina uses. pavina. liahtina and street furniture.
and related accessory uses. fixture and feature desians approved bv
Page 6
the City. and features that match or reflect the
oriainal desian.
6. The desired confiaurations and
locations for off-street parkina lots. in 4. Construction materials should be
order of preference. are: compatible with those used on adiacent
develoDments. New buildinas should
a. Shared double loaded aisle to side incorporate traditional materials and
or rear of buildina partiallv on-site reflect aararian features.
and partiallv off-site on
neiahborina parcels. 5. The number of colors used on a
b. Sinale or double loaded aisle in buildina or proiect should be three or
front of buildina(s) with substantial fewer. to include a base color. trim color
landscapina. and sinale accent color.
c. Shared off-site or public parkina
lot within 200 feet. 6. Color and materials samples shall be
submitted as part of the ARC process.
In no caso shall off streot spaces reauire The use of florescent. "neon" or "dav-
backiRa onto ::1 public street. glo" colors or buildina facades is not
appropriate.
Buildina Desian
7.Color palettes should be compatible
Materials and Colors with those of adioinina buildinas.
1. Buildinas shall be one or two stOry, Sians
horizontallv massed. and small to Sians shall meet all reauirements of the
moderate scale structures. with Development Code and the provision of
pedestrian features evident from public these auidelines and standards. If a
streets. particularlv Station Way. conflict exists. the most restrictive
reauirements shall applv unless
On the east side of Station Way the otherwise approved bv ARC.
established materials. textures and
colors of the existina buildinas shall be Location
utilized or reflected in the buildina. 1. Sians should not obstruct
landscape and sianaae desians. architectural features of the buildina.
2. The heiaht. lot coveraae and floor to 2. Wall sians should be located above
area ratio of new buildinas shall not the entry to the buildina to better relate
exceed the development standards to pedestrian traffic.
allowed in Title 16 of the Municipal Code
for the VMU district. 3. Window and door sians should be
3. To the extent feasible. oriainal applied where thev will not obstruct
visibilitv.
structures and materials. and
architectural details should be intearated 4. Sians on awninas or canopies should
into proiect desian and retained. be placed where they may be seen bv
renovated. or replaced with materials pedestrians as well as bv passina traffic.
Page 7
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HEARING DATE: OCTOBER 7, 200~ A TT ACHMENT 3
AGENDA ITEM: lI.e.
" ~
CITY OF ARROYO GRANDE
ARCHTECTURAL REVIEW COMMITTEE AND, PLANNING
COMMISSION S T A FF REPORT
CASE NUMBER: DCA 03-006 "
ApPLICANT: CITY OF ARROYO GRANDE
REPRESENTATIVE: ROB STRONG
PROJECT LOCATION: VICINITY OF TRAFFIC WAY AND STATION WAY
PROJECT DESCRIPTION: For the Traffic Way Corridor and Station Way Area -
Consideration of proposed Ordinance: amending the Zoning
Map and Arroyo Grande Municipal Code Title 16, Chapters
16.08 and 16.36 to rezone a portion of the Highway
Commercial, General Commercial and Village Mixed Use
Districts to Traffic Way Mixed Use (TMU);and revisions to
Design Overlay 0-2.11 to amend Design Guidelines and
Standards for proposed Design Overlay-D-2.11 for both
the vicinity of Traffic Way and Station Way including
requirements affecting auto-related sales and services,
visitor serving uses, and shared parking locations.
(.,
PROJECT PLANNER': Teresa McClist4
RECOMMENDATION
It is recommended the Architectural Review Committee and Planning Commission
review the attached ordinance for the proposed Traffic Way Mixed Use (TMU) district
and Design Guidelines and Standards for Design Overlay district 0-2.11 and make a
recommendation to the City Council.
BACKGROUND
On September 16, 2003, the Planning Commission reviewed the proposal for the
I second phase of the Development Code update process relating to zoning revisions
and design guidelines and standards for the Traffic Way Corridor and the vicinity of
Station Way. The item was continued to allow the Architectural Review committee time
for further review of design issues; to allow more study relating to the commercial-
residential interface for the Traffic Way area and consider simplification/consolidation of
the Design Overlay districts 0-2.11 and 0-2.2. ... ..-
pc ARC Staff Report100703A.doc 1013/03
._,--
.
"-
The Architectural Review Committee (ARC) reviewed the proposal on September 8,
2003 and recommended approving the zoning revisions. Several concepts were
discussed to augment the proposed Design Guidelines and Standard for the Traffic Way
and Station Way areas and that discussion was continued to the ARC meeting of
October 6, 2003.
The 2001 General Plan Land Use Element designates the southern section of the
Traffic Way corridor as Mixed Use, a change from the previous land use designation of
General Commercial and Highway Commercial. Proposed Zoning revisions are
intended to implement and define the policies and goals of the General Plan land use
element including General Plan Policy LU5-5; "define different Mixed Use overlay or
combining designations concurrent with Development Code revision for General Plan
consistency to clarify allowed, conditionally permitted and prohibited uses in each MU
subarea", and; LU5-8 "provide for different combinations, configurations and mixtures of
commercial, office and residential uses designating the East Grand Avenue, EI Camino
Real and Traffic Way corridors as Mixed Use (MU)."
, DISCUSSION
Simplification of the DesiQn Overlav Districts
The complexity of regulating multiple base zoning districts and de$ign overlay districts is
a concern raised by Planning Co~missioners at the September 16, 2003 meeting;
Currently there three base zoning districts and one design overlay district in the vicinity
of Traffic Way and Station Way. Zoning regulations are contained in Section 16.36 and'
guidelines are contained as sections in a separate document which is incorporated by
reference into the Municipal Code. The proposal revises the base zoning districts and
, amends Design Overlay district D-2.11 as follows:
Proposed Zoning Map Revision
FROM TO
Highway Commercial Traffic Way Mixed Use - Design
(HC-D-2.11) , 001 > Overlay 2.11
General Commercial (TMU-D-2.11 )
(GC-D-2.11 )
Village Mixed Use 001 > Village Mixed Use -Design
(VMU-D-2.11 ) Overlay 2.11
(VMU-D-2.11 )
Ultimately, guidelines 'and sta.ndards for each overlay district will form a chapter in a
, separate supplement to the Development Cod.e. The reason for the design overlay
districts is to distinguish or enhance a specific neighborhood character. For example,
the Station Way area is zoned the same as the Village Core, however the building
design prevalent in the area is distinct and D-2.11 provides different design guidelines
and standards than the- D-2.4 Historic Character Overlay district.
PC ARC Staff Report100703A.doc Page 2 10/3/03
""_---,"",- .-"----"_.,--".,"""--
.
"
There are several alternatives that should be considered ~s part of the proposal and in
anticipation of upcoming Development Code revisions for the remaining Mixed Use
districts on E. Grand Avenue and EI Camino corridors as well as Mixed Use
designations off of W. Branch, Valley Road, Elm Street and the Pike.
A. Increase the number of zones to distinguish Mixed Use neighborhoods without ,
design overlay districts. Brief design standards for each Mixed Use zone
(besides the Village districts) would be included within the code section
pertaining' to Mixed Use districts (Section 16.36) and specific uses would be
included in Section 16.52 (eg. Auto dealerships 16.52.060).- Recent code
revisions included standards, specific to all Mixed Use projects (16.48.065) and
special uses in specific Mixed Use districts (16.36.030B) which could be
augmented. The initial proposal divided D-2.11 into two Overlay Districts D-2.2
and D-2.11 ::: One alternative would be to repeal D-2.11 and integrate Design
Guidelines and Standards into more zoning districts:
Advantages' include a less cumbersome code by reducing oreliminatin,g most
Design Overlay through augmented specific use standards, (eg. adding a section
on Visitor Serving facilities to Chapter 16.52 and augmenting the existing Section
16.52.060 on Automobile dealerships, augmenting general standards for Mixed
Use projects in Section 16.48.065.
Disadvantages include more zoning districts; unique character sub~areas; and
less detail regarding building design for a different way to encourage uses
specific to certain properties, auto-retail or visitor serving for example, instead of
through a design overlay district. Consideration of a concept plan for a certain
area would not be facilitated with a design overlay district and would have to be
proposed through another planning process such as a specific plan.
B. Another alternative would be to decre~se the number of base zoning districts and
increase the number of design overlay districts to characterize each area. Each
design overlay would require specific guidelines and standards contained as
chapters in a supplement to the Development Code.
In this alternative the Traffic and Station Way areas could involve two overlay
districts, D-2.2 and D2.11. Similarly, the East Grand Avenue corridor would be
zoned Mixed Use (MU) with up to three different overlay district designations (eg.
MU-D-2.22 for the Gateway area, MU-D-2.23 for the Midway area, and MU-
D.2.24 for the Highway area. Advantages include a ,simplified Development
. Code. Disadvantages include a supplemental document including expanded
Design Guidelines and Standards for each area and more standards including
specific setbacks and building height for each overlay district.
pc ARC Staff Report1 00703A.doc Page 3 10/3/03
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C. A third alternative would be to eliminate design overlay districts, and create an
optional Design Element of the General Plan and refine guidelines and standards
for mixed use (and eventually residential districts) which include sections on
gateways, public places, streets and specifics for certain character areas.
Advantages include a simplified Development Code. The disadvantages are
similar to Alternative B regarding the lack of a mechanism to enhance features ,
for specific properties, and another optional Element requiring a General Plan
Amendment.
Mixed Use - the Commercial/Residential Interface
Concerning the zoning revision for the Traffic Way area, there were issues raised
regarding compatibility between commercial and residential uses including setbacks,
building height, screening and lighting. Standards for Mixed Use projects have been
adopted and are included in section 16.48.065. For the Traffic Way area, the issue
centers primarily around auto-related uses on properties" adjacent to residential
neighborhoods. Currently, Section 16.36.020.H.1. requires a '20 feet setback (with 10
feet of landscaping) for any lot in a Mixed Use or commercial district that abuts a lot in
any residential district. The proposal presented to the Planning Commission on
September 16, 2003 included setbacks of1 0 feet for single story structures and 15 feet
for two~story structures. Uses not involving buildings would be considered by
Conditional Use Permit.
Given the generally larger lot sizes in the vicinity of Traffic Way, existing character and
the increased site coverage and floor area ratio proposed (from .5 to .75 and a FAR of
45% to 75%), the building height was proposed at 30 feet or two stories, which is the
existing height limit for the area. However, the height limit adopted for the proximate
Village Core Downtown and Village Mixed Use areas is 30 feet or three-stories
whichever is less, with a maximum of 36 feet allowable through the Minor Use P~rmit
process. Staff. suggests consideration of a potential 36 foot height in the TMU at least
for visitor-serving uses. '
Other Deskm Issues
The Traffic Way area is proposed to be characterized by the building era of the 1920's
through 1970's (previously debated to be limited from the 1920's through 1950's).
Some guideline revisions were discussed specific to the auto-related era of the district.
Issues relating to auto-related uses adjacent to residential districts are addressed in
Section 16.52.060 and required by required Conditional Use Permits. Given the
. cramped nature of the existing auto-retail uses on Traffic Way, the vehicle Display area
standard requiring a ten-foot landscape and decorative curb strip has' not been
achievable. However, any expansion of existing auto-retailers will be considered by
conditional use permit and other effective design treatments that meet the requirements
of the guidelines and standards contained in Design Overlay 2.11.
pc ARC Staff Report100703A.doc Page 4 10/3103
.
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PUBLIC COMMENT
Staff held a public workshop for business owners and the public on August 14, 2003 to
facilitate discussion and receive public input on preliminary concept plans. Additional
public comment was heard at the Planning Commission meeting of September 16,
2003. On September 5, 2003, 285 notices were mailed out to owners of properties
within 300 feet of the area proposed for amendment.
/
One letter, Attachment 5 was received and is included for consideration.
Attachments:
Resolution
Exhibit A - An ordinance of the City Council of the City of Arroyo Grande
adopting Development Code Amendment .03-006 rezoning a portion of the
Highway Commercial, General Commercial and Village Mixed Use
Districts to Traffic Way Mixed Use; revising Design Guidelines and
Standards for the vicinity of Traffic Way and Station Way, D-2.11.
Exhibit Ai - Proposed Zoning Map
Exhibit A2 - Revised Chapter 16.08 and 16.36
1. Aerial photo of subject area
'2. Zoning map,
3. Proposed Design Guidelines.andStandards for Design Overlay District 2.11
4. Municipal Code Section 16.48.065
5. Municipal Code Section 16.52.060
.
.
pc ARC Staff Report100703A.doc Page 5 10/3103
PLANNING COMMISSION ATTACHMENT 4 T
MINUTES
OCTOBER 7, 2003
~ '~i9~or Devens, Public Works, said drainage to Soto Park is at and above capaci~~d it
w(j~Id.,"be required to retain water on site.
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Chair Gtthri_~ opened the Public Hearing. . _
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Robert Del Cali!e~.!. applicant, explained that only one branch ofthe~R~,~; ree was proposed
to be removed; sid.eV(alk in front of the property would havepedesttlinswalking close to his
bedroom and bathroom; others in the area have not been requifecf'to install walkway; he
was prepared to do"~~b.~t Public Works required for on s!t~'rv:a'ter rett3ntion; requested
waiving of density bon4.~-"pn the two back lots; the frQ!it.~1)use had been his family
residence for 20 years ask~a ,for density bonus to be'JII~fieaalso;.requested to complete
work on drop line from main'p,?w~r pole to garage compt~ted:aftermapisTecorded.
~(."',.~_'~..\, - - ':"-, ,'.>>i?
Chair Guthrie closed the Public Hearing. "
".... .>..
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The Commission had further discussion and:_.r.n~ge the following motion:
,.{-,~,.\:/(.,
Commissioner Keen made a motion, seCC!rlded by Commissioner Fowler, to approve the
Tentative Parcel Map and Variance, amelJding Conditions:
. No. 45 - undergrounding waived, b~f service lines be undergrounded.
. No. 61 - on site water retention acceptable to the Public Works Director.
. Sidewalk waived due to oak tre,e" and privacy confIiCt~.'-
,-
and adopt:
RESOLUTION 03-1903
,
A RESOLUTIPN OF THE PLANNING COMMISSION OF THE CITY OF
ARROYO" GRANDE A PPROVING TENTATIVE PARCEL MAP. CASE NO.
~" . -' y , >
03-004 APPLIED FOR BY ROBERT A. DEL CAMP . - ,
The motion was approved on the following roll call vote:
AYES: / Commissioners Keen, Fowler, Arnold and Chair Guthrie.
NOE~: Commissioner Brown
ABSENT: None
v
~...
the foregoing resolution was adopted this 7th day of October 2003.
CONTINUED ITEM: PUBLIC HEARING ITEM II.C - DEVELOPMENT CODE
AMENDMENT CASE NO. 03-006; APPLICANT - CITY OF ARROYO GRANDE;
LOCATION - VICINITY OF TRAFFIC WAY AND STATION WAY, CITY OF ARROYO
GRANDE. Staff report prepared and presented by Associate Planner, Teresa McClish,
Community Development Director, Rob Strong and Assistant Planner, Jim Bergman.
Ms. McClish gave an overview using a power point presentation of the proposed ordinance
for the Traffic Way and Station Way area that would amend the zoning map and Arroyo
Grande Municipal Code Title 16, Chapters 16.08 and 16.36 to rezone a portion of the
Highway Commercial, General Commercial and Village Mixed-Use Districts to Traffic Way
Mixed-Use, including requirements affecting auto-related and visitor serving uses and
shared parking locations.
PLANNING COMMISSION PAGE 3
MINUTES
OCTOBER 7, 2003
~
Ms. McClish stated that this was a continued discussion from September 16, 2003. 0 n
October 6, the ARC had again reviewed the zoning proposal and continued the Village
Guidelines and Standards to a special meeting of October 20. On the zoning proposal the
ARC recommended one change - equipment rental - it was proposed that it would be
allowable through the CUP process and to allow for public review. The ARC also
recommended that the building height be limited to 30 feet or 3 stories. Up to 36' would be
allowed by CUP for Visitor Serving uses.
Commissioner Arnold asked if there were any restrictions as to where the live/work
arrangements would be located? Ms. McClish replied that there was nothing in the
proposal that restricts the placement 0 f the r esidentialc omponento f the live/work. This
would be a CUP requirement and decided on case-by-case basis.
Commissioner Brown asked if more flexibility to the language could be added for the Mixed-
Use zoning relating to the buffering between different uses. Ms. McClish replied that the
interface between commercial and residential uses was addressed in three different places
and had previously been dealt with when the Design Standards for the Nillage:Mixed-Use
districts was addressed and there.are specific standards for automobile uses Jor the Traffic
Way area. Ms. McClish said some language could be added in Exhibit A2 relating to this.
Commissioner Brown also asked that I anguage be added to allow greater heights in the
Visitor Serving area to allow for the possibility of a hotel? Ms. McClish replied that a height
greater than 36' could be provided through a CUP.
Chair Guthrie opened the Public Hearing.
Four residents spoke and a petition submitted which had been signed by an additional 19
neighbors regarding the proposed re-zoning for Traffic Way Mixed-Use. The neighbors
expressed their concerns with the increased traffic and requested that Allen Street be
closed at the property line between 115 & 121 Allen Street. The four residents were:
1. Ellen Gaver, 121 Allen Street.
2. Rachel Salerno, 331 Short Street.
3. David Hamilton, 211 Allen Street.
4. Fred Bauer, 212 Short Street.
Chair Guthrie closed the Public Hearing.
Commissioner Brown:
. Buffers between the different uses - he would like to see some flexibility in the
language.
. Closure of Allen Street further down so the businesses could still have access.
. Visitor Services district - like to see greater heights.
Commissioner Fowler:
. Allen Street closure should be considered.
. Most of the conditions are fine and the mixed use is good.
. Is the issue of naming an auto-related area being rushed, will this not eventually
become part of the historic Village and should we be drafting the guidelines this way.
. Allowing over 36' heights should be left as a Variance.
-6. , ,....____"""'~"~,.,,.~____,__
PLANNING COMMISSION PAGE 4
MINUTES
OCTOBER 7, 2003
...
. Buffer areas: Agreed with Commissioner Brown that language could be changed to
state "or more" to give flexibility.
Ms. McClish stated staff could bring forward interface language for. addition to section A2
and it would be forthcoming separate from Traffic Way mixed-use proposal.
Commissioner Arnold:
. Changing to mixed-use was for the commercial zones and the properties on Allen Street
were residential non-conforming. The change to Mixed..:Use allows for more flexibility.
. He agreed with Ms. Fowler that he also had some concern with the auto theme on
Traffic Way and whether it was appropriate for this area.
. The' new sign recently approved for Mullahey Ford was very modern.
. He had concern for exceeding the 36' height.
Commissioner Brown relating to the comments from Commissioner Fowler and Arnold
stated the City has done nothing to restrict what auto-related businesses are allowed to do
and maybe we are putting together a whole district that is not suitable for the area.
Commissioner keen:
. He agreed with having more flexibility in the buffer language.
. Equipment rental: there are rental businesses that just have light equipment and
wondered if this should require a CUP.
. He would not like to exceed the 36' building height.
. Auto dealerships are well established in the area and he would expect the area to
remain this way.
Commissioner Guthrie:
. Agreed that 36" heighU3 stories should not be exceeded.
. Specific criteria should be established for the interface between auto-related uses and
residential; Attachment 5, as it reads now, would not be adequate and should be
expanded to, protect the neighborhood and that auto-related businesses can relate to.
. More flexible language for buffer zones should be allowed for Mixed-Use zones.
Commissioner Keen made a motion, seconded by Commissioner Arnold, to recommend
that the City Council adopt Development Code Amendment 03-006, regarding rezoning a
portion of the Highway Commercial, General Commercial and Village Mixed-Use Districts to
Traffic Way Mixed-Use and adopting Traffic Way Mixed-Use district land use regulation and
adopt:
RESOLUTION 03-1904
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
ARROYO GRANDE RECOMMENDING AT THE CITY COUNCIL ADOPT
DEVELOPMENT CODE AMENDMENT 03-006 REZONING A PORTION OF
THE HIGHWAY COMMERCIAL, GENERAL COMMERCIAL AND VILLAGE
MIXED-USE DISTRICTS TO TRAFFIC WAY MIXED-USE
The motion was approved on the following roll call vote:
PLANNING COMMISSION PAGE 5
MINUTES
OCTOBER 7, 2003
..
AYES: Commissioners Keen, Arnold, Brown, Fowler and Chair Guthrie
NOES: None
ABSENT: None
the foregoing resolution was adopted this 7th day of October, 2003
Commissioner Keen made a motion, seconded by Commissioner Arnold, to recommend
that consideration of ,the revision of the Guidelines and Standards for Design Overlay D-
2.11 for the vicinity of Traffic Way and'Station Way be continued to the meeting of
December 2, 2003.
AYES: Commissioners Keen, Arnold, Brown, Fowler and Chair Guthrie
NOES: None
ABSENT: None
CONTINUED ITEM: PUBLIC HEARING ITEM II. D - VESTING TENTATI TRACT MAP
/,~
CA~E NO. 02-002, DEVELOPMENT CODE AMENDMENTCASE.NO. -002, GEt1~L
PLAN AMENDMENT CASE NO. 02-001 & SPECIFIC PLANAMENENTCASE<NO:02-
001; APPLICANT - DON McHANEY; LOCATION - NORTH E OF FARROI..L AVE
~.;,;,.".-...._,T
BETWEEN OAK PARK BLVD AND GOLDEN WEST PLAC . Staff report prepared and
,'--.' :"
presented by Kelly Heffernon. division of a 10,3;;'i:lcre site. She
Ms. Heffernon gave an update on the proposal for a s described the changes that the applicant had made . ce the last sUQl11ittal to the Planning
Commission (September' 2, 2003): reduced the oject from 73 to, 66 residential lots and
included a 0.9-acre parklponding 'basin adjoi . g Soto Sports 'Complex; another plan type
has been introduced, Plan "D", a larger two- ory design; .plan."C" has been altered to show
the carports enclosed as two-car garcig' . Other changes" hlcluded enlarging two lots and
widening all "C" lots to provide more 0'" /i'space and,~9ded guest parking spaces along the
private drive; an updated traffic stu has also 'be~n .submitted.
~(?~~,~~_~',~"~; .J
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Finally Ms. Heffernon explai d that because the subject property is one of the few
remaining large 'undevelope parcels in Dr~inage ZoneA, staff requested that the retention
basin be oversized to a mmodat~additional runoff; the retention basin shown on the
plans can accommod approximately triple the amount of storage capacity than the
.- - - - -..~..,
project requires, but ould result in the loss of seven lots. ,T~e applicant is willing to
,,' ." "
dedicate the prope to the City to own and maintain, but reques~sthat as a concession for
this added publi enefit the City allow ten affordable units rather thEm the full 25% of the
project. An alt native is to downsize the basin to the project requirement only and provide
the required number of affordable units on-site. Staff favors the larger basin and
preservatio of all seventeen affordable units.
r to Commission questions Mr. Strong gave a detailed explanation of .th~ history
and t capacity of the existing drainage basin and future expectations with the' iri~~lation
of a ",'9..' "retention basin. " "
Chair Guthrie opened the Public Hearing.
-
A TT ACHMENT f)
'" CITY COUNCIL MINUTES
OCTOBER 14, 2003
PAGE 4
9.b. Consideration of Proposed Ordinance for Traffic Way and Station Way
Areas Amending the Zoning Map and Arroyo Grande Municipal Code,
including Traffic Way Mixed Use District and Revising Design Guidelines
and Standards for Design Overlay District D-2.11.
Associate Planner McClish presented the staff reportand.recommended the Council:
1) Open the Public Hearing on the Architectural Review Committee and Planning
Commission recommendations for Development Code Case No. 03-006; 2) Introduce
an Ordinance amending portions of Title 16 of the Arroyo Grande Municipal Code
(Development Code Amendment 03-006), rezoning a portion of the Highway
Commercial, General Commercial and Village Mixed Use Districts to Traffic Way
Mixed Use; and 3) Continue the Public Hearing on the Design Guidelines and
Standards for Design Overlay District 0-2.11 to the December 9, 2003 Regular City
Council meeting.
Mayor Ferrara opened the Public Hearing.
Ellen Gaver, Allen Street, expressed concerns regarding the proposed Traffic Way
Mixed Use zoning changes as it relates to her residential property (located next door to
Christianson Chevrolet) and as it relates to lighting, view, noise,property value, traffic,
and parking on Allen Street. She read a prepared statement for the record (on file in the
Administrative Services Department).
Robert Anderson, Arroyo Grande, inquired as to when this process began. He stated
he was in favor of the Mixed Use concept; however, he wished for additional time for
public input on the proposal.
Upon hearing no further public comments, Mayor Ferrara closed the Public Hearing.
Council discussion ,ensued with regard to the zoning recommendations and the
proposed continuance of consideration of the Design Guidelines and Standards.
Following clarification by staff concerning the recommended actions, Council Member
Dickens suggested continuing the entire item to December in order to provide the
community with more opportunity for public input.
Mayor Pro Tern Dickens moved to continue the Public Hearing on Development
Code Amendment Case No. 03-006, the introduction of an Ordinance amending
portions of Title 16 of the Arroyo Grande Municipal Code (Development Code
Amendment 03-006), rezoning a portion of the Highway Commercial, General
Commercial and Village Mixed Use Districts to Traffic' Way Mixed Use, and the
Design Guidelines and' Standards for Design Overlay District D-2.11 to the December
9, 2003 regular City Council Meeting. Mayor Ferrara seconded the motion, and on
the following roll call vote, to wit:
.. CITY COUNCIL MINUTES
OCTOBER 14, 2003
PAGE 5
AYES: Dickens, Ferrara, Lubin, Runels
NOES: None
ABSENT: Costello
There being 4 AYES, 0 NOES, and 1 ABSENT, the motion is hereby declared to be
passed.
':g:C. Consideration of Proposed Ordinance Repealing, ;Amending, and .Ad .
':<'i~~~rovisions to Titles 1, 2, 3, and ,16 of the City of'ArroyoGrandeMu .
\'"%;Code.
~.,~;:.:??;;~;~
Director -'.;b{~dministrative Services Wetmore presented the staff eport. She
explained tli'a(~~~a!f initiated phase two of the Municipal Code updat~~~an, whereby
each title in the Municipal Code would be reviewed bythe':'affectQ~epartments to
ensure that Code )5?qvisions are internally consistent with the Jj}~ current policies
and p-actices. Staff'fecommended the Council introduce C!Jl2~rainance repealing,
amending, and addirigtprovisions to Titles 1, 2, 3, and.Af3"!Qf the City of Arroyo
Grande Municipal Code;,,",t\,.~~;~V
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Mayor Ferrara opened the Public Hearing, and upoohe.aring no public comments, he
closed the Public Hearing. . ". ,,,-" /
. ... ._;..
~~<,~- ,..4t. . c...."'...:~ /
Council Member Runels moved t6jnt~oducean..Ordinance repealing, amending, and
adding provisions to Titles 1, 2, 3 an(f~~{ C?(f~}iYCity of Arroyo Grande Municipal Code.
Mayor Pro Tern Dickens seconded th~~~~~: and on the following roll-call vote, to wit:
. '..'C_' ._,. ..~ .., .'., ~
AYES: Runels, Dickens, Lubh,,' and Ferrara
~. - - ,. -' ,. ~_.
NOES: ' None _~!'- ~-i/-\"
ABSENT: Costello r:-:;,- ":~\. '
.<E-',)/ "C":'J::\~ _
There being 4 AYES, O.;NQES, and 1 ABSENT, the motion is hereby declared to be
passed . ,!J:~<" ''ii,
. z~,'2tt// ~~f';',
10. CONTINUED ~US~INESS: .,~~~
None. ~"';";'~
'$"::,,.,
11. NEW BUSINESS: '~~
.. . . ,'.. ~..~.
~;!i;-,~?' " ",; ~~
11.a'~&9sideration of Resolution Supporting a Statewide Ba I "
.A6,quire Voter Approval Before State Government May Ta
..;/'/Funds.
.:-:,,: ~';;;~}/
",/ -
CitY "Manager Adams presented the staff report and recommended the Council pt
.,/a,"Resolution supporting a statewide ballot initiative to require voter approval B
'4he State government may take local tax funds, and designate a lead representa J
-- -----------.., ---~~-_.-
NOTES ATTACHMENT 6
"
CITY OF ARROYO GRANDE
$PECIAL MEETING OF THE
ARCHITECTURAL REVIEW COMMITTEE (ARC)
MONDAY, OCTOBER 20, 2003
The meeting of the City of Arroyo Grande Architectural Review Committee was called to order
at 3:20P.M.
ROLL CALL: Present were Committee members, Hodges, Miltenberger, Ohler and Chair
Hoag. Committee member Fellows was absent.
APPROVAL OF NOTES: None.
I. PUBLIC COMMENT: None.
II. PROJECTS
A. Continued Item: DEVELOPMENT CODE AMENDMENT 03-006; City of Arroyo
Grande - Traffic Way
Teresa McClish explained that the Planning Commission continued the portion of the
proposal regarding the Design Guidelines and Standards to the meeting of December
2, 2003 to provide more opportunity for pubUc comment and discussion 'specific to the
automobile-related area and how the proposal could produce a recognizable character
that could eventually serve as an extension of the Village. The Council continued both
the zoning and the Design Guidelines and Standards so that both portions of the
proposal could be brought back together, which is scheduled for December 9, 2003.
Chair Hoag asked for public comment:
1. John Keen - 298 N. Elm Street - stated that there was discussion at the Planning
Commission meeting regarding concern that catering to auto dealerships was
planning only for the short-term. However, there may very well be other auto-
dealers that move in, if the current dealerships are vacated.
2. Ellen and Bob Gaver - 121 Allen Street - related the concerns from their comment
letter (9/30/03), including a buffer between auto-retailers and residential neighbors
to address aesthetics, lighting, noise and traffic. They were interested in the status
of any discussions of an Allen Street closure near their property.
Committee member Ohler stated he was in favor of an Allen Street closure. Staff
clarified that this issue will be addressed at the next Traffic Commission. The ARC
members said that if a road closure is eventually approved, the Commission should
review the barrier design. '
ARC and Staff discussed historical zoning classifcations in the' Traffic Way and Allen
Street v icinity a nd recent c hanges(including demolitions) i n t he a rea, a nd reviewed
existing setbacks with the proposal.
--
.-----~
~ The ARC discussed the benefits to a "Route 6 6" era design theme for Traffic Way:
descriptive historical era, Traffic Way is an old highway route, it could incorporate a
coffee-shop-style, Streamline Moderne and variations of Art-Deco themes, it could
accommodate diverse design, it would w.ork whether or not area is dominated by auto
dealerships.
After considerable discussion, including review of written corrections submitted by
Committee member Fellows, the following substantive changes to the proposed
Design Guidelines were recommended:
1. The design era should be 1920's to 1950's.
2. Include as a descriptive example introduction to Traffic Way Sec. Historic Route 66
style building and elements of architectural styles such as ~Art-Deco" "Streamline
Moderne", and "road house".
. 3. Under the. Special Considerations heading:' ...permitted uses shall be limited to
visitor serving usos, including motels, and related accessory uses.
4. Strike the subheadings Materials and Colors under Building Design, and Location
under Signs.
5. Replace photo of Mobil gas station with another photo.
The ARC made additional minor corrections and clarifications.
The following additional changes to the Development Code Chapters 16.36 and 16.52
were recommended:
16.36.040.8.: Wherever a lot in any commercial or mixed use district abuts a lot in any
residential district or residential uses, a minimum building setback of twenty (20) feet
measured from the property line shall be required. A minimum of ten (10) feet of this
setback area shall be landscaped and include a six (6) foot decorative wall; the
remaining area may be used for required off-street parking.
16.52.060 No.3.: Vehicle Display Areas. .'\ minimum ten (10) foot. Landscape and/or
decorative curb strip2 shall be provided along the street frontage perimeter of all
vehicle display areas. Width of strip and ~final design treatment shall be subiect to
review and approval bv the architectural review committee.
Insert NO.4: Screenina. A six (6) foot decorative masonry wall with landscapina to
effect screenina to a heiaht of twelve (12) feet shall be reauired for interior side and
rear yards abuttina a residential district or use.
4~Lighting: All lighting shall comply with the provisions of Sections 16.48.090 with
special consideration for nearby residential uses.
A motion was made by Committee member Hodges to recommend the proposed
Design Guideiines and Standards for Traffic Way and Station Way as amended.
Committee member Ohler made the second: the motion passed by a 4-0 vote.
III. DISCUSSION ITEM: None.
III. ADJOURNMENT: The meeting was adjourned at 5:45 P.M.
ATTACHMENT 7
. :EIVED.
~
.._.____ ...._. __ _..______.. _ __'4 _ . ,--
ELLEN & BOB GAVER OCT 0 2 2003
121 Allen Street
. . CITY OF ARROYO GRANDE
Arroyo Grande, CA 93420 COMMUNITY DEVELOPMENT DEPT.
805/473-2919 ..
missellv(Cl>.charter.net
,-,
September 30. 2003
Dear Planning Commissioners:
We live at 121 Allen Street and have o~ed this property since 1993. We'are deeply
concerned about the proposed re-zoning in progress to create Traffic Way Mixed Use.
On the re-zoning map, as previously presented, the property, across the street from us, as
well as the property immediately next door (115 Allen St.). both owned by Christianson
Chevrolet, will become Traffic Way Mixed-Use.
" .
Our primary concern relates to the unavoidable fiiction that will'occur with a Commercial
automotive structure and/or use immediately next to our residence. - We are concerned
about noise, view, lighting; privacy, traffic, and most of all, our property value. This is
our home and we intend to continue to live here indefinitely. According to the new zoning
plan as presented at the last Commission meeting; there appears to be little or no buffering
offered between these properties. We can't imagine that this will be good for our
property. its value, or our quality of life.
We are making a specific and formal request that procedures for buffering and
mitigation be included in the re-zoning Resolution.
. .
Specifically regarding traffic and parking. this has been a growing problem on Allen Street
\ for sometime now. Overflow parking from the new auto service station on the comer of
, Allen & Traffic Way and from Heacock Welding has made movement along Allen Street
very difficult and unsafe. We expect thispr<:>blem to worsen as more properties on Allen
Street transition to auto service uses.
We are making a specific and fonnal request that AIlen Street be closed at the
property line between 115 and 121, thereby maintaining the residential nature of
, Allen Street to tbe east, as well as providing access for the businesses to the west.
- .
,-; t, t.
A TT ACHMENT 8
~ 16.48.050 Conversion of Residential Structures to Nonresidential Use.
No structure originally designed as a residence, hotel or motel, or as an accessory
structure or addition to a residence, shall' be used for any commercial' or office uses unless the
building and site are improved to meet all code requirements for an office or commercial
development. This includes but is not limited to building code, fire code,' and zoning ordinance
requirements. Such a conversion shall be subject to a Minor Use Pennit pursuant to Section
16.12.060. "
.' 16.48.060 Development Densitv.
.
The general plan classifications specify the maximum allowable development density per
gross acre of land owned in fee by the applicant (including street right~of-way that would revert
to the property owner if abandoned). Rounding up to the next whole number is not applicable
when figuring density except when calculating density for the provision of affordable housing or
for mixed use districts where rounding to the next half number is appropriate. Density for Mixed
Use districts is discussed in Section 16.36.050.
16.48.065 Mixed Use Proiects.
This section provides standa,rds for the design of mixed used projects.
A. Design consid~ations. A mixed used project shall be designed to achieve the
following objectives.
1. Potential noise, odors, glare, pedestrian traffic, and other potentially
significant impacts on residents shall be minimized to allow a compatible mix
of residential and nonresidential uses on the same site.
2. The design of the mixed use project shall take into c~msideration potential
impacts on adjacent properties and shall include specific design features to
minimize potential impacts.
3. The design of a mixed-use project shall ensure that the residential units are of
a residential character, and that privacy between residential units and between
other uses on the site are maximized.
4. The design of the structures and site planning shall encourage integration of
the street pedestrian environment with the non-residential uses through the use
of plazas, courtyards, walkways, and street furniture. Design amenities shall
encourage travel by walking, bicycling and public transit.
5. Site planning and building design shall be compatible with and enhance the
adjacent and surrounding residential neighborhood in tenns of scale, building
design, color, exterior materials, roof styles, lighting,' landscaping and
signage, to preserve the rural nature and small town character of Arroyo
Grande.
B. Mix of Uses.
1. A mixed use project may combine residential uses with any other use allowed
in the applicable zoning district by Section 16.36.030, provided that where a
mixed use project is proposed with a use required by Section 16.36.030 to
have Minor Use Pennit or Conditional Use Pennit approval in the applicable
zoning district, the entire mixed use project shall be subject -to that permit
requirement.
~. ~ Ii r
"- 4. Use of Non-residential Space. Non-residential spaces shall consist of uses that, '
serve clients and patrons that visit the site. These spaces' may not be exclusiveiy
used for -storage for other businesses or used for adjacerit residential purposes. '
5. Location of Parking. Parking for residential and non-resjdential purposes "shall be
located behind buildings or to the side ofbuildihgs when parking behind buildings
is not possible. Driveways shall not access Branch Street. ' Off-site parking ~ay be
allowed by CUP within 200 feet of the uses served, or by public-parking provided ,
for properties within the Parking and Business Improvement District (PBID).
" 6. All discretionary land use approvals shall include Fire Chief review addressing a
.
contribution towards the ultimate ,goal of fire sprinklers inall buildings in the VCD
and VMU districts. Complete fire systems, bonding for. future installations, or
partial installations shall be required.
C. Residential densities in mixed-use zones.
1. This title limits the maxim~ residential density for each mixed-use zone; however, the
density allowed for any residential project within the City may be varied through the
appropriate discretionary review process, wh~n discretionary review is provided for in
this title. The COI1111J!lnity Development Director, PlanningComrnission, and/or City ,
Council shall have~~:authority to reasonably condition any residential development
subject to discretionary review to ensure proper transition to and compatibility with
adjacent deve!opments, existing or proposed.
2. For the purpose of mixed use development, residential density is defined as follows:
Residential Dwelling Unit Type Density Equivalent
LivelWork Unit .5
Studio .5 "
1-bedroom .75
2-bedroom 1
3-bedroom 1.5
4-bedroom 2
--~--~--~-_.._,-'-'--,._~.._--~'--,._-- _.._-~
A TT ACHMENT 9
RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF ARROYO GRANDE RECOMMENDING THAT THE CITY
COUNCIL ADOPT DEVELOPMENT CODE AMENDMENT 03-006
REZONING A PORTION OF THE HIGHWAY COMMERICAL,
GENERAL COMMERCIAL AND VILLAGE MIXED USE DISTICTS
TO TRAFFIC WAY MIXED USE; REVISING DESIGN
GUIDELINES AND STANDARDS FOR THE VICINITY OF
TRAFFIC WAY AND STATION WAY.
WHEREAS, the City Council adopted the City of Arroyo Grande Development Code
and revised zoning map, which became effective June 13, 1991, and indicated that
modifications to the Development Code may occur to refine the document; and
WHEREAS, the City Council of Arroyo Grande adopted the updated General Plan on
which became effective on October 9, 2001 and requires a comprehensive review and
necessary revisions to the Development Code and zoning map for consistency in
accordance with Government Code Section 65860; and
WHEREAS, The City has a responsibility to assure adherence to the General Plan in
meeting the needs and desires of the residents and the community; and
WHEREAS, City staff held a public workshop, August 14, 2003 to consider
amendments to the Development Code concerning Traffic Way and Station Way for the
purposes of General Plan consistency and implementation of its goals and policies; and
WHEREAS, the Planning Commission of the City of Arroyo Grande has considered
Development Code Amendment 03-006 at a duly noticed public hearing on September
16,2003, October 7,2003 and December 2,2003 in accordance with the Development
Code of the City of Arroyo Grande at which time all interested persons were given the
opportunity to be heard; and
WHEREAS, the Planning Commission has determined that the following Development
Code Amendment findings can be made in an affirmative manner:
A. The proposed change in zone and revisions to Title 16 will satisfy Objective LU5-
5 of the Land Use Element of the General Plan, which requires the City to
"define different Mixed Use overlay or combining designations concurrent with
Development Code revision for General Plan consistency to clarify allowed,
conditionally permitted and prohibited uses in each MU subarea", and; LU5-8
which states that the Mixed Use corridors are to "provide for different
combinations, configurations and mixtures of commercial, office and residential
uses designating the East Grand Avenue, EI Camino Real and Traffic Way
corridors as Mixed Use (MU)." and is therefore desirable to implement the
~ ,~_.._-'
RESOLUTION NO. 02-1854
PAGE 2
provisions of the General Plan.
B. The proposed changes in zone and revisions to Title 16 reflect that both the
existing zones and proposed zones are predominantly commercial, contain
historical residential use, and promote continued mixed use and will not
adversely affect the public health, safety, and welfare or result in an illogical land
use pattern.
C. The proposed changes of zones and revisions to Title 16 satisfy Section
16.36.010 of the Development Code, which states "It is the purpose of this
chapter to provide regulations that implement those, goals, objectives and
policies, and that are aimed toward the provision of adequate and appropriate
commercial areas within the city".
D. The proposed change of zones and revisions to Title 16 are within the scope of
the Program EIR prepared for the 2001 General Plan Update, and the potential
environmental impacts of proposed amendment are less than insignificant.
NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of
Arroyo Grande hereby recommends that the City Council approve Development Code
Amendment 02-006 with the above findings and subject to the conditions as set forth in
the Ordinance attached hereto and incorporated herein by this reference.
On motion by Commissioner , seconded by Commissioner ,
and by the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
the foregoing Resolution was adopted this 2nd day of December 2003.
ATTEST:
L YN REARDON-5MITH JIM GUTHRIE, CHAIR
COMMISSION CLERK
ROB STRONG,
COMMUNITY DEVELOPMENT DIRECTOR
----------- n__________
11.a.
MEMORANDUM
TO: CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER#,
SUBJECT: CONSIDERATION OF SELECTION OF COUNCIL MEMBER
LUBIN AS MAYOR PRO TEM
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council appoint Council Member Lubin as the Mayor
Pro Tem for the next one-year period.
FUNDING:
There is no cost impact from this action.
DISCUSSION:
At the December 10, 2002 meeting, the City Council established a new policy
regarding selection of the Mayor Pro Tern. At that time, the City Council agreed
to appoint the Mayor Pro Tern on a one-year rotational basis by seniority. The
following provisions are set forth in the City Council Operations Manual under
Policy 4. City Council Appointments:
A. The City Council appoints a Council Member as Mayor Pro Tern to serve
the duties of Mayor in his/her absence.
B. The Mayor Pro Tem shall serve a term of one year.
C. The appointment of the Mayor Pro T em takes place at the first regular
meeting in December of each year.
D. It is the City Council's policy to rotate appointment of the Mayor Pro Tern
based upon the seniority of City Council Members that have not yet
served in the position of Mayor Pro Tem.
Council Member Runels was Mayor Pro Tem at the time the policy was
established. Current Mayor Pro Tem Dickens has served in the position over the
past year. Therefore, Council Member Lubin has the remaining longest time of
service on the City Council.
S:\CITY MANAGER\STEVE\Council Reports\12.09.03 Mayor Pro Tern.doc
----'"-
CITY COUNCIL
SELECTION OF COUNCIL MEMBER LUBIN AS MAYOR PRO TEM
DECEMBER 9, 2003
PAGE 2
AL TERNA TIVES:
The following alternatives are provided for the Council's consideration:
- Appoint Council Member Lubin as the Mayor Pro Tem for the next
one-year period;
- Do not appoint Council Member Lubin and modify the established
policy;
- Provide staff direction.
- -~----------- - ------,------
----.-~-
ii.b.
MEMORANDUM
TO: CITY COUNCIUREDEVELOPMENT AGENCY BOARD OF
DIRECTORS "
FROM: STEVEN ADAMS, CITY MANAGER5if-
SUBJECT: CONSIDERATION OF PROPOSED DISPOSITION AND
DEVELOPMENT AGREEMENT WITH COURTLAND-ARROYO
GRANDE, L.P
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the Redevelopment Agency Board of Directors adopt the
attached resolution approving the proposed Disposition and Development
Agreement (DDA) with Courtland-Arroyo Grande, L.P.
FUNDING:
The estimated cost to the City for consultant services related to preparation of
the DDA is $26,250. A reimbursement agreement has been entered into with the
developer for the full amount. Therefore, there is no fiscal impact to the City for
review, preparation and approval of the modifications to the DDA.
The DDA sets forth financial assistance in the form of a loan in the amount of
$800,000. This amount is proposed to be funded approximately $360,000 from
the Affordable Housing "In Lieu" Fee Fund, $40,000 from the Redevelopment
Affordable Housing "Set Aside" Fund, and deferred payment in the amount of
$400,000 from development impact fees.
The prior DDA for this project approved by the City Council included a 10%
interest rate on the loan. This proposal reduces the interest rate to 3%.
However, the prior proposal assumed loss of tax increment revenue since the
entire project would have been restricted for low and very low income
households, thus qualifying it for a full property tax exemption. With 48 of the
units now planned to be restricted for low and very low income households,
property tax will be levied on the remaining units. Therefore, this proposed DDA
is more favorable to the Redevelopment Agency on a cash flow basis. The
Agency is projected to collect $49,950 in tax increment compared to $22,631 in
loan payments under the prior agreement.
S:\CITY MANAGER\STEVE\Council Reports\12.9.03 Courtland Senior Housing Project DDA.doc
------~- ----,-.-----------
CITY COUNCIL
CONSIDERATION OF DISPOSITION AND DEVELOPMENT AGREEMENT
FOR COURTLAND-ARROYO GRANDE, L.P.
DECEMBER 9, 2003
PAGE 2
DISCUSSION:
On March 20, 2002, the City Council/Redevelopment Agency approved a DDA
with Courtland-Arroyo Grande, L.P. for a proposed 108-unit affordable senior
housing project at 1524 and 1542 East Grand Avenue. The DDA required the
developer to satisfy conditions precedent to conveyance and to obtain a
preliminary reservation of 9% tax credits from the Tax Credit Allocation
Committee (TCAC) by December 30, 2002. At the March 11, 2003 meeting, the
City Council/Redevelopment Agency extended the agreement to September 30,
2003.
The developer has since submitted three unsuccessful applications for State tax
credits, even though the project achieved the total number of points available in
the competitive evaluation process. The developer has now submitted an
application for 4% State tax credits, which has received a preliminary
recommendation for approval. The 4% tax credit program provides a lower
subsidy and is a somewhat less competitive process. This process also awards
the developer with issuance of tax-exempt multifamily housing revenue bonds for
use in construction of the facility. In order for the California Statewide
Communities Development Authority (CSCDA) to issue the bonds, the City
Council held a "TEFRA" hearing at the November 25, 2003 meeting and
approved a resolution in support of the project.
Since the subsidy provided by the 4% tax credits is significantly less than the 9%
tax credit program, and since the prior DDA has expired, the developer has
modified the financial plan for the project and requested the DDA be revised and
reconsidered. The primary impact to the project will be a change in the number
of low and very low income restricted units from 100% to 48 of the 108 total units.
However, the remaining units are proposed to be restricted to moderate-income
level rents, which means the project will continue to comply with the existing
affordability provisions of both the Conditional Use Permit and DDA.
Requested changes to the DDA include an extension of the term of the $800,000
loan from 18 to 30 years and a decrease in the interest rate from 10% simple
interest to 3%. The 10% interest was originally established in order to
compensate for the projected loss of tax increment revenue since the 100% low
and very low affordable restricted units would have qualified for a full property tax
exemption. With 48 of the units now planned to be restricted for low and very low
income households, property tax will be levied on the remaining units. Therefore,
tax increment will be generated from the project and staff believes the interest
rate should no longer be a significant issue. Research by staff indicates that this
level of subsidy is reasonable for the number of affordable units proposed and
will be an efficient use of the City's affordable housing funds. The developer is
-~ .---------------- ______ u___._
CITY COUNCIL
CONSIDERATION OF DISPOSITION AND DEVELOPMENT AGREEMENT
FOR COURTLAND-ARROYO GRANDE, L.P.
DECEMBER 9, 2003
PAGE 3
also no longer requesting the City to participate in purchase of the land, which
will address some of the concerns previously expressed by the City Council
regarding this provision. The City Council reviewed these proposed
modifications at the November 25, 2003 meeting and directed staff to prepare the
proposed DDA for approval.
The specific terms of the financial assistance have been negotiated with the
assistance of the Agency's redevelopment housing consultant, the Rosenow
Spevacek Group Inc. (RSG), and the revisions to the DDA have been prepared
by the Agency's special counsel, Stradling Yocca Carlson & Rauth. The
objective of negotiations has been to agree on terms favorable to the Agency and
City, but that will enable the project to be funded and proceed.
The current terms of the $800,000 loan specify that it will be payable from
"residual receipts" after higher priority payments have been made. Residual
receipts refer to the cash flow from the project after operating expenses and
mortgage payments are made. Proceeds from sale or refinancing are included.
The priority of the division of cash flow is as follows:
. Payments first pay down the deferred developer fee, including a 3%
simple interest return;
. Once the deferred developer fee is paid off, the developer equity is paid
off, including an 8% (annual compounding) return;
. Once the developer equity is paid off, the residual receipts are divided 50-
50 between the developer and the Agency until the Agency loan is paid
off, including 3% simple interest return; and
. Once the Agency loan is paid off, the developer receives 100% of the
residual receipts.
RSG has also completed an analysis of the financial projections for the project.
The projections anticipate that the developer will refinance the project in the 16th
year, once the tax credit investor has passed the initial 15-year compliance
period. The refinance proceeds are projected to be sufficient to payoff the
balance of the developer equity, the Agency loan, and accrued interest at that
time. However, there is no assurance that the developer will refinance or sell in
the 16th year, or at any time prior to the due date of the Agency loan. Therefore,
it is possible that the Agency loan may not be paid back until the 30th year. A
copy of the RSG income projections is attached.
Considering the impact that prevailing wage requirements will have on the project
beginning on January 1, 2004, and the progress the developer has made in
receiving a preliminary recommendation for 4% tax credit and tax-exempt bond
-------- .------ ----------,
CITY COUNCIL
CONSIDERATION OF DISPOSITION AND DEVELOPMENT AGREEMENT
FOR COURTLAND-ARROYO GRANDE, L.P.
DECEMBER 9, 2003
PAGE 4
allocations at this time, staff and RSG recommend the Agency accept these
terms and execute an agreement with developer incorporating them.
AL TERNA TIVES:
The following alternatives are provided for the Redevelopment Agency Board of
Directors' consideration:
- Adopt Resolution approving the Disposition and Development
Agreement;
- Amend the Agreement and approve the Resolution;
- Do not approve the Resolution;
- Provide staff direction.
Attachments:
1. Income projections prepared by RSG
---~-^--"-_. --------- -- - -~--~---------------------_...._-"'-- ---.------------------..
RESOLUTION NO. RDA 03-_
A RESOLUTION OF THE ARROYO GRANDE REDEVELOPMENT
AGENCY APPROVING THE AMENDED AND RESTATED
AFFORDABLE HOUSING AGREEMENT BETWEEN THE AGENCY
AND COURTLAND - ARROYO GRANDE PARTNERS, L.P.
WHEREAS, the Agency and Courtland-Arroyo Grande, L.P., a California limited partnership
(the "Developer") entered into that certain Disposition and Development/Affordable Housing
Agreement dated as of March 20, 2002 (the "Prior Agreement"); which has expired; and
WHEREAS, the Agency and the Developer desire to amend and restated the Prior
Agreement as set forth in a certain draft Amended and Restated Affordable Housing
Agreement, in the form submitted herewith (the "Agreement"); and
WHEREAS, the Agreement provides for the development of certain real property
designated in the Agreement as the "Site") for affordable senior housing under the terms
and conditions set forth in the Agreement; and
WHEREAS, the Site is located in the project area (the "Project Area") of the Arroyo Grande
Redevelopment Project (the "Project"), and the provision of affordable housing under the
Agreement will promote the implementation of the Redevelopment Plan for the Project (the
"Redevelopment Plan") and the implementation plan promulgated pursuant thereto (the
"Implementation Plan"); and
WHEREAS, the Agreement promotes the Redevelopment Plan and the affordable housing
objectives of the Agency and the City of Arroyo Grande;
NOW, THEREFORE BE IT RESOLVED by the Arroyo Grande Redevelopment Agency as
follows:
1. The Agency finds and determines that:
a. The Agreement will effectuate the purposes of the Community
Redevelopment Law (Health & Safety Code ~ 33000 et seq.) and the
Redevelopment Plan for the Project Area, as well as the Implementation
Plan, by facilitating the development of affordable housing for senior citizens
in the City of Arroyo Grande, in that the Agreement provides additional
funding from the Agency's Low and Moderate Income Housing Fund for
project costs that are necessary to assure a high quality development and
provision of adequate housing amenities in the project.
b. The Agreement is consistent with the Agency's "Implementation Plan"
adopted by the Agency in accordance with Health and Safety Code Section
33490, in that (i) the goals and objectives set forth in the Implementation Plan
include increasing and improving the community's supply of affordable
housing, and (ii) the project on the Site is specifically identified as one of the
Agency's housing programs to be undertaken in the time period covered by
the Implementation Plan.
RESOLUTON NO. RDA 03-
PAGE 2
2. The Agreement, in the form submitted herewith, is hereby approved.
3. The Executive Director of the Agency is authorized and directed to make final,
technical modifications to the Agreement consistent with the material provisions of
the Agreement approved hereby, and to finalize the document for signature by the
Agency Chairman, and the Chairman is thereafter authorized and directed to sign
the Agreement on behalf of the Agency.
4. The Executive Director of the Agency is authorized and directed to take such other
and further actions and execute such other and further documents as may be
necessary to implement and effect the Agreement and this Resolution on behalf of
the Agency.
On motion by Board Member , seconded by Board Member , and
on the following roll-call vote, to wit:
AYES:
NOES:
ABSENT:
The foregoing Resolution was passed and adopted on this _ day of December, 2003.
-,-~-----^_.
RESOLUTION NO. RDA 03-
PAGE 3
TONY M. FERRARA, CHAIR
ARROYO GRANDE REDEVELOPMENT AGENCY
ATTEST:
KELLY WETMORE, AGENCY SECRETARY
ARROYO GRANDE REDEVELOPMENT AGENCY
APPROVED AS TO CONTENT:
STEVEN ADAMS, EXECUTIVE DIRECTOR
ARROYO GRANDE REDEVELOPMENT AGENCY
APPROVED AS TO FORM:
MARK HUEBSCH, SPECIAL COUNSEL
ARROYO GRANDE REDEVELOPMENT AGENCY
::<
a.
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AMENDED AND RESTATED AFFORDABLE
HOUSING AGREEMENT
by and between
ARROYO GRANDE REDEVELOPMENT AGENCY
and
COURTLAND-ARROYO GRANDE, L.P., a California limited
partnership
~SCH:\881805vl0\22707.0007
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
THIS AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT (the
"Agreement"), dated, for identification purposes only, as of December 9,2003, is entered into by and
between the ARROYO GRANDE REDEVELOPMENT AGENCY, a public body, corporate and
politic ("Agency"), and COURTLAND-ARROYO GRANDE, L.P., a California limited
partnership (the "Developer").
R~CIIALS
A. Agency is a California redevelopment agency acting under the California Community
Redevelopment Law, Part 1 of Division 24 of the Health and Safety Code (the "Redevelopment
Law").
B. The Redevelopment Plan for the Arroyo Grande Redevelopment Project, sometimes
referred to as the Project (herein, the "Project") was adopted by Ordinance No. 479CS by the City
Council of the City of Arroyo Grande (the "Redevelopment Plan"). The redevelopment project area
for the Redevelopment Plan as so amended constitutes the "Project Area."
C. The Agency is authorized and empowered under the Community Redevelopment
Law, California Health and Safety Code Sections 33000, et seq. (the "Community Redevelopment
Law"), to enter into agreements for the production, improvement, or preservation of affordable
housing to households oflimited income, with such housing to be available at Affordable Rent.
D. The Developer is experienced in the development and operation of affordable multi-
family housing, particularly in San Luis Obispo County.
E. The Agency and the Developer entered into that certain Disposition and
Development/Affordable Housing Agreement dated as of March 20, 2002 (the "Prior Agreement").
F. The Developer and the Agency desire to amend and restate the Prior Agreement as
set forth in this Agreement.
G. Developer shall purchase certain real property (the "Site") located in the City of
Arroyo Grande and within the Project Area of the Agency's Arroyo Grande Redevelopment Project,
whereupon the Developer shall develop one hundred seven (107) dwelling units, one (1) manager's
unit and related improvements for occupancy by "Seniors" (as defined below) on the Site and shall
thereupon rent specified numbers of dwelling units to "Very Low Income Households," "Low
Income Households" and "Moderate Income Households" all at "Affordable Rent" and at the
"Prescribed Rent Levels," as those terms are defined below. Such development is intended to
implement the Agency's goals and objectives under the Redevelopment Law to provide decent, safe
and sanitary housing for persons of very low income, and to increase, improve and preserve housing
available at affordable housing cost to persons of very low income, pursuant to the Redevelopment
Plan and Health and Safety Code Sections 33334.2, et seq., and 33413.
H. It is contemplated that Developer shall apply for and obtain an allocation for 4% Low
Income Tax Credits as generally provided for under Section 42 of the Internal Revenue Code and/or
California Revenue and Taxation Code Sections 17057.5, 17058, 23610.4 and 23610.5 and
California Health and Safety Code Section 50199, et seq. ("4% Tax Credits").
DOCS0C\881805vl OIJ.2707 .0007
-.-----.---- ......----
I. The Developer has proposed to enter into this Agreement with the Agency under
which the Developer shall develop one hundred eight (108) dwelling units and a designated number
of those dwelling units to be rented' at "Affordable Rent" and at the "Prescribed Rent Levels"
throughout the "Required Covenant Period" (as defined below). Those undertakings of the
Developer are material to this Agreement and but for those undertakings by the Developer, the
Agency would not have entered into this Agreement.
J. Under this Agreement, the Agency will loan certain funds to assist in the
development of the Site to be repaid from "Residual Receipts" under the "Agency Note" as defined
hereunder. Payment is further evidenced as the obligation to pay "Residual Receipts Note Payments"
under the "Agency Note."
K. This Agreement is in the vital and best interest of the City of Arroyo Grande,
California, and the health, safety and welfare of its residents.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and
conditions herein contained, the parties hereto agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Defined Terms. As used in this Agreement (and in all other Project Documents,
unless otherwise defined), the following capitalized terms shall have the following meanings:
"Acquisition Closing" means the recordation of the deed for the Site by Owner to the
Agency (or the Developer) consistent with and subject to recordation of the Agency CC&Rs as a first
and senior lien or encumbrance or title.
"AffiUated Person" means an entity formed for the purpose of constructing, owning, and
operating the Development, which includes Courtland-A1royo Grande, L.P., a California limited
partnership, as a general partner and which may include tax credit investors as limited partners.
"Affordabillty Period" means a period equal to the greater of: (i) fifty-five (55) years
commencing with the recordation of the Agency Developer CC&Rs or (ii) coterminous with the term
of the Tax Credit Regulatory Agreement.
"Affordable Rent" means a cost not in ~xcess of that which may be charged the applicable
Eligible Person or Family pursuant to (i) Section 50053 of the California Health and Safety Code or
(ii) those limitations established by TCAC, whichever is more restrictive in each case.
"Agency" means the Arroyo Grande Redevelopment Agency, a public body, corporate and
politic, exercising governmental functions and powers and organized under the Redevelopment law,
and any assignee of or successor to its rights, powers and responsibilities.
"Agency Deed of Trust" means Attachment No. 12 to this Agreement.
"Agency Developer CC&Rs" or "Regulatory Agreement" means Attachment No.9 to this
Agreement.
"Agency Disbursement Amount" means an amount equal to the lesser of (i) those Agency
funds disbursed in conformity with Section 4.16.1 of this Agreement, or (ii) the lesser of (a) Fifteen
2
DOCSOC\881805v 1 0\22707 .0007
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Thousand Three Hundred Eighty-Four Dollars and Sixty-Two Cents ($15,384.62) for each of the
Required Affordable Units, or (b) Eight Hundred Thousand Dollars ($800,000).
"Agency Escrow" is described in Section 2.2.
"Agency Note" means Attachment No. 11 to this Agreement.
"Agreement" is defined in the first paragraph hereof.
"Applicable Interest Rate (Section 4.7)" means the rate of ten percent (10%) simple per
annum.
"Application for Disbursement" is defined in Section 4.16 hereof.
"Approved Construction and/or Permanent Lender" means one or more of Bank of
America, California Community Reinvestment COIpOration ("CCRC") or Wells Fargo Bank ("Wells
Fargo") or another mutually acceptable institutional lender.
"Area" means the San Luis Obispo County Statistical Area, as periodically defined by HUD.
"Audited Financial Statement" means an audited financial statement addressed to Agency,
including without limitation a profit and loss statement, generated by the certified public accounting
finn ofNovogradoc & Company or a third party certified public accountant acceptable to the Agency
in its reasonable discretion, showing, for the previous Operating Year, on a monthly basis and in an
easily readable fonnat, Gross Revenues, Operating Expenses, Debt Service, Operating Reserve,
Capital Replacement Reserve and Residual Receipts.
"Basic Concept Drawings" is defined in Section 4.2.1 hereof.
"Building Permit" means the building pennit(s) issued by the City and required for the
Improvements.
"Calculation of Affordable Rents" means Attachment No. 5 to this Agreement.
"Capital Replacement Reserve" means a reserve fund to be established by the Developer in
the amount of Two Hundred Dollars ($200) per Unit per Year or such greater amount as may be
required under the Tax Credit Rules.
"Certificate of Completion" means Attachment No. 8 to this Agreement.
"Certificate of Continuing Program Compliance" means the Certificate to be filed by the
Developer or its property manager on behalf of the Developer with the Agency, which Certificate
shall be substantially in the fonn attached hereto as Attachment No.4.
"Chargeable Fees and Reserves" means each of the following, within the respective
parameters therefor set forth in this Agreement: (i) Capital Replacement Reserve; and (ii) Operating
Reserve.
"City" means the City of Arroyo Grande, California, a municipal corporation.
3
DOCS0C\881SOSvl 0\22707.0007
- .----'_._,-,---~~-------~--- ---.- ,-- --~_._-"------ -"---'-_...--
"Closing Deadline (Bonds)" means April 5, 2004 or such later date as may be approved by
TCAC for the closing of bonds for which authorization was given prior to the Date of Agreement.
"Condition of Title" is defined in Section 2.3 hereof
"Conditions Precedent to Disbursement of Agency Disbursement Amount" are set forth
in Section 3.2.
"County" means the County of San Luis Obispo, California.
"Date of Agreement" means December 9,2003.
"Debt Service" means required Debt Service payments for the Primary Construction Loan
and/or the Primary Pennanent Loan.
"Default" is defined in Section 7.1 hereof.
"Deferred Developer Fee Portion" means that portion of the developer's fee approved by
TCAC which the Developer is to collect from Residual Receipts.
"Developer" means Courtland-Arroyo Grande, L.P., a California limited partnership.
"Developer's Equity" means that amount detennined in good faith by the Executive Director
to constitute equity invested by the Developer pursuant to Section 3.3 of this Agreement. Only cash
infused by the Developer, and not proceeds from tax credits, shall constitute Developer's Equity for
purposes of this Agreement.
"Developer's Fee" means that amount detennined in good faith by the Executive Director to
constitute the fee due the Developer (from private investors and without liability as to the Agency)
pursuant to Section 3.3 of this Agreement.
"Developer's Title Policy" is defined in Section 2.4.
"Development" means the new apartment complex for Seniors and associated improvements
as required by this Agreement to be: (i) constructed by the Developer upon the Site, with related
otIsite improvements, as more particularly described in the Scope of Development, and (ii) operated
in confonnity with the Agency Developer CC&Rs and the Tax Credit Regulatory Agreement.
"Due Diligence for the Site" means soils and related testing of the Site as deemed necessary
by the Agency, involving without limitation a Phase 1 and Phase 2 site investigation.
"Escrow Holder" means the holder of the Escrow for the recordation of the Agency
Developer CC&Rs, which shall be Chicago Title Insurance Company or another escrow holder
mutually acceptable to the Agency and the Developer.
"Event of Default" has the meaning set forth in Section 7.1.
"Executive Director" means the Executive Director of the Agency or his designee or
delegate.
4
DOCSOC\88180Svl 0\1.2707 .0007
-_.__.._-------_._-~- ^--'-- -_..-_...._...-.~..-._..-
"4% Tax Credits" is defined in Recital H hereof.
"Gross Revenues" means the total rental income and all other revenues or income received
by the Developer or its successors or assigns in connection with the Project, including without
limitation Housing Rent, laundry charges, payments in connection with Section 8 certificates
(including payments under such certificates that are in excess of the restricted rents defined herein),
cable income, interest earnings, and insurance proceeds but, except for any interest earned thereon,
does not include (i) the proceeds of the sale of Tax Credits to finance the Development or
(ii) refinancing proceeds (provided the refinancing is permitted by and is accomplished in accordance
with this Agreement), or (iii) those insurance proceeds which are directly applied to repair or
reconstruct the Improvements.
"Hazardous Materials" means any substance, material, or waste which is or becomes
regulated by any local governmental authority, the County, the State of California, regional
governmental authority, or the United States Government, including, but not limited to, any material
or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted
hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the
California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii)
defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined
as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous
Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated biphenyls, (viii) listed under
Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the
California Administrative Code, Division 4, Chapter 20, (ix) designated as "hazardous substances"
pursuant to Section 311 of the Clean Water Act (33 U.S.C. ~ 1317), (x) defined as a "hazardous
waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. ~6901
et seq. (42 D.S.C. ~6903) or (xi) defined as "hazardous substances" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. ~6901 et seq.
"Housing Rent" shall mean the total of monthly payments by the tenants of a Unit for (a) use
and occupancy for the Unit and facilities associated therewith, (b) any separately charged fees or
service charges assessed by the Developer which are required of all tenants of the Units, other than
security deposits, (c) a reasonable allowance for utilities not included in (a) or (b) above, including
garbage collection, sewer, water, electricity and gas, as determined by regulation of Housing
Authority of the County of San Louis Obispo pursuant to 24 C.F.R. Part 813 and (d) possessory
interest, taxes or other fees or charges assessed for the use of the Units and facilities associated
therewith by a public or private entity other than the Developer.
"Improvements" means all of the improvements described in the Scope of Development.
"Income Verification" means Attachment No. 10 to this Agreement.
"Inter-Creditor and Subordination Agreement" means an agreement substantially in the
form of Attachment No. 14 to this Agreement with such modifications, if any, as may be approved
by the Executive Director.
S
DOCSOC\881805v1 0\22707 .0007
--'""-----------_.._~. .--.--------
"Legal Description of the Site" means Attachment No.2 to this Agreement.
"Low Income Households" or "Lower Income Households" means J:louseholds earning not
greater than sixty percent (60%) of Median Income.
"Low Income Unit" or "Lower Income Unit" means a Unit occupied at Affordable Rent by
a Low Income (or Lower Income) Household.
"Maturity Date" means the thirtieth (30th) anniversary of the Date of Agreement.
"Median Income" means Median Income for the Area (namely. San Luis Obispo County).
as set forth by regulation of the California Department of Housing and Community Development
pursuant to Health and Safety Code Sections 50079.5 and 50105.
"Memorandum of Agreement" means a memorandum of agreement in the form of
Attachment No. 15 to this Agreement.
"Moderate Income Households" means households earning not greater than one hundred
twenty percent (120%) of Median Income pursuant to Health and Safety Code Section 50093.
"Moderate Income Unit" means a Unit occupied at Affordable Rent by a Moderate Income
Household.
"Net Collections" means Net Operating Income less Debt Service.
"Net Operating Income" means Gross Revenues. less Operating Expenses.
"Nonprofit Services Fee" means a fee paid by Developer to a nonprofit corporation for
services in connection with operating the Development; the Nonprofit Services Fee shall in no event
exceed the larger of Nine Thousand Dollars ($9.000) per year increased annually in proportion with
the Consumer Price Index. All Urban Consumers, San Luis Obispo Metropolitan Statistical Area
("Cpr'). or one and sixty-seven hundreds percent (1.67%) of Net Collections for any Year.
"Notice" shall mean a notice in the form prescribed by Section 8.2 hereof.
"Operating Expenses" means actual. reasonable and customary costs. fees and expenses
directly incurred and for which payment has been made and which are attributable to the operation.
maintenance. and management of the Development. excluding the Capital Replacement Reserve and
consisting of only the following (and such additional items. if any. as to which the prior written
approval of the Executive Director is first obtained. Such approval shall be granted. granted subject
to conditions. or refused at the sole and absolute discretion of the Executive Director): painting.
cleaning, repairs and alterations; landscaping; utilities; rubbish removal; sewer charges; costs
incurred to third parties in connection with generating laundry charges (but in no event to exceed the
laundry charges); real and personal property taxes and assessments; insurance premiums; security;
advertising. promotion and publicity; office. janitorial. cleaning and building supplies; actual and
customary salary payable to an on-site manager which directly and exclusively benefits residents of
the Development; the actual and customary salary paid for one assistant manager, one on-site
maintenance manager and such other on-site management personnel. if any. which directly and
exclusively benefit residents of the Development, subject to the prior written approval of the
Executive Director at his sole and absolute discretion; a management fee ("Management Fee")
6
DOCS0C\88180Svl 0\22707 .0007
."--~'----~~'---------_.---, -- - ------,-~
(excluding anyon-site management personnel) of not to exceed five percent (5%) of Gross
Revenues; payments on' any deferred portion of the Developer's fee, which shall not exceed the
amount of such fee as established by TCAC (on a one-time basis, to be released not earlier than pro
rata based upon the affordable units produced, and without any accrual of interest); an asset
management fee of not to exceed two percent (2%) of the Gross Revenues, purchase, repairs,
servicing and installation of appliances, equipment, fixtures and furnishings; reasonable and
customary fees and expenses of accountants, attorneys, consultants and other professionals as
incurred commencing after the completion of the Improvements (as evidenced by the issuance by
City of a certificate of occupancy for the corresponding building developed as part of the
Improvements) in connection with the operation of the Project; tenant improvements that are not
included in the costs of the Improvements, and payments made by the Developer to satisfy indemnity
obligations and other payments by the Developer pursuant to this Agreement other than to the
Developer, partners or other related persons; provided, however, that payments to parties related to
Developer for Operating Expenses must not exceed market rates. The Operating Expenses shall not
include non-cash expenses, including without limitation, depreciation. The Operating Expenses shall
be reported in the Audited Financial Statement and shall be broken out in line item detail.
"Operating Reserve" means a reserve fund to be established by the Developer as a reserve
for operating expenses in the amount of Seventy Five Thousand Dollars ($75,000) to be funded by
Developer not later than the payment of the final equity installment by the investment limited
partner. Any disbursements from the Operating Reserve shall be repaid by Developer from available
cash flow senior to payments to the Agency under the Agency Note. Interest earned on moneys held
in the Operating Reserve shall be retained in the Operating Reserve.
"Operating Year" means the period commencing as of the Date of Agreement and ending as
of December 31 of that calendar year, then each succeeding calendar year thereafter during the
Required Covenant Period.
"Owner" means Pacific Harbor Homes, LLC, the fee owner. of the Site as of the Date of
Agreement. The Owner may become a limited partner in Developer.
"Permitted Senior Lien" means a first deed of trust loan, in favor of an institutional lender
approved by the Agency, in the amount of not to exceed the estimated cost of the Improvements not
funded by the Agency Disbursement Amount or available Tax Credit proceeds (which resulting
amount is initially estimated at Ten Million Dollars ($10,000,000), subject to further confirmation
and approval by the Executive Director), which secures repayment of a construction loan or
pennanent loan made at prevailing market rates (as confirmed and approved by the Executive
Director), unless otherwise consented to or waived in writing by the Executive Director.
"Prescribed Rent Levels and Tenant Mix" means one hundred eight (108) Units, of which
one (1) Unit will be a manager's Unit, and of which the remaining one hundred seven (107) shall be
available at and occupied at Affordable Rents for the following households: (i) twenty (20) one-
bedroom Units shall be Very Low Income Units; (ii) four (4) two-bedroom Units shall be Very Low
Income Units; (Hi) twenty-two (22) one bedroom Units shall be Low Income Units; (iv) six (6) two-
bedroom Units shall be Low Income Units; (v) forty-six (46) one bedroom Units shall be Moderate
Income Units; and (vi) nine (9) two-bedroom Units shall be Moderate Income Units.
"Primary Construction Loan" means the first mortgage loan obtained by the Developer
from a state agency or instrumentality or a reputable and established bank, savings and loan
7
IXX:S0C\88180Svl O\J.2707 .0007
---..------'-'----_._---,--,,~----- _._----~.."._, _._--.--~-,
-~---~--
association, or other similar financial institution for financing the development (but not the
operation) of the Project pursuant to this Agreement.
"Primary Permanent Loan" means the first mortgage loan obtained by the Developer from
a state agency or instrumentality or a reputable and established bank, savings and loan association, or
other similar financial institution in an amount up to the amount required to satisfy the outstanding
balance of the Primary Construction Loan or in an amount in excess of such outstanding balance so
long as such excess proceeds are used to pay (or prepay) Residual Receipts Note Payments under the
Agency Note.
"Principals" means Foundation for Affordable Housing II, Inc., a California Corporation,
Thomas E. Willard, President, and MFP A, Inc., a California Corporation, Sean Clark, Vice-
President.
"Project Documents" means, collectively, this Agreement, the Agency Developer CC&Rs,
the Memorandum of Agreement, all other Attachments to this Agreement, and any other agreement,
document, or instrument that Agency requires in connection with the execution of this Agreement or
from time to time to effectuate the purposes of this Agreement.
"Purchase Price" means Eight Hundred Thirty Five Thousand Dollars ($835,000) or such
other price as shall be detennined by independent appraisal and agreed to by the parties.
"Redevelopment Plan" is defined in Section 1.5 hereof.
"Related Entity" means a Principal or an entity in which any interest is held by the
Developer or one or more of the Principals.
"Request for Notice of Default" means Attachment No.6.
"Required Affordable Units" means one hundred seven (107) of the dwelling units required
to be developed on the Site ul)der this Agreement.
"Required Covenant Period" means a period of sixty (60) years, as more particularly set
forth in the Agency Developer CC&Rs.
"Residual Receipts" for a particular Operating Year means Gross Revenues for the
corresponding Operating Year less (i) Debt Service payments made during such Operating Year on
the Primary Construction Loan or the Primary Permanent Loan in amounts not in excess of the
amounts due and payable during such Operating Year (and not including prepayments), and (ii) the
sum of Operating Expenses and, to the extent funded, the Nonprofit Services Fee Chargeable Fees
and Reserves as required by this Agreement and made during the corresponding Operating Year. All
calculations of Residual Receipts shall be made annually, on or before March 15 for the preceding
Operating Year, on a cash (and not accrual) basis and the components thereof shall be subject to
verification and approval, on an annual basis, based upon conformity with the terms of this
Agreement, by the Agency.
"Residual Receipts Note Payments" or "Note Payments" means all payments required to
be made pursuant to the Agency Note.
S
DOCSOC\88180Svl 0'll2707 .0007
----'~'~"-----------'- ___M_ ~ -----
.--
"Schedule of Performance" means Attachment No.3 to this Agreement. The Schedule of
Perfonnance sets forth the dates by which Developer is to perfonn certain obligations under this
Agreement.
"Scope of Development" means Attachment No. 7 to this Agreement.
"Seniors" means those persons meeting the qualifications as set forth in the Fair Housing
Act. 42 U.S.C. ~ 3601. et seq.. and 24 C.F.R ~ 100.300, et seq.. and Sections 51.3 and 51.4 of the
California Civil Code. as applicable. At least one occupant for each Unit shall be fifty-five (55)
years or older and. in addition. to the greatest extent pennitted by law. all occupants shall be persons
55 years of age or older.
"Site" means that real property depicted on the Site Map and described with greater
particularity by the Legal Description of the Site.
"Site Map" means Attachment No. I to this Agreement.
"Site Value" means Eight Hundred Thirty Five Thousand Dollars ($835.000) or such other
amount as may hereafter be mutually designated in writing by the Developer and the Agency. based
upon appraisal(s). as the value of the Site as of the Date of Agreement.
"Stabilized Occupancy" means occupancy of 90% (or more) of the Units for three (3)
consecutive months.
"TCAC" means the Tax Credit Allocation Committee of the State of California.
"Tax Credit Deadline" means April 30. 2004.
"Tax Credit Regulatory Agreement" shall mean the regulatory agreement which it is
contemplated may be required to be recorded against the Site with respect to the issuance of tax
credits in the event a preliminary reservation is obtained from TCAC. as set forth in Section 5.2.6
hereof.
"Tax Credit Rules" means Section 42 of the Internal Revenue Code and/or California
Revenue and Taxation Code Sections 17057.5. 17058. 23610.4 and 23610.5 and California Health
and Safety Code Section 50199. et seq.. and the rules and regulations implementing the foregoing.
including without limitation program regulations promulgated by TCAC.
"Tax Credits" shall mean 4% Low Income Tax Credits granted pursuant to Section 42 of the
Internal Revenue Code and/or California Revenue and Taxation Code Sections 17057.5. 17058.
23610.4 and 23610.5 and California Health and Safety Code Section 50199. et seq.
"Title Company" shall be Chicago Title Insurance Company or another title insurer
mutually acceptable to the Agency and the Developer.
"Unit" means each of the one hundred eight (108) dwelling units required to be developed by
the Developer under this Agreement.
"Very Low Income Households" means households earning not greater than fifty percent
(50%) of Median Income for the Area pursuant to Health and Safety Code Section 50105.
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"Very Low Income Unit" means a Unit occupied at Affordable Rent by a Very Low Income
Household.
"Year" means a calendar year.
1.2 Sin2ular and Plural Terms. Any defined tenn used in the plural in this Agreement
or any Project Document shall refer to all members of the relevant class and any defined tenn used in
the singular shall refer to any number of the members of the relevant class.
1.3 References and Other Terms. Any reference to this Agreement or any Project
Document shall include such document both as originally executed and as it may from time to time
be modified. References herein to Articles, Sections and Exhibits shall be construed as references to
this Agreement unless a different document is named. References to subparagraphs shall be
construed as references to the same Section in which the reference appears. ,The tenn "document" is
used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments
and other written material of every kind. The tenns "including" and ,"include" mean "including
(include) without limitation."
1.4 Exhibits Incoroorated. All attachments and exhibits to this Agreement, as now
existing and as the same may from time to time be modified, are incOlporated herein by this
reference.
1.5 The Redevelooment Plan. The Redevelopment Plan for the Arroyo Grande
Redevelopment Project (the "Redevelopment Project") was approved by Ordinance No. 479CS. The
project area of the Redevelopment Project is referred to herein as the "Project Area." The use of the
Site for affordable housing purposes under this Agreement is of benefit to the Project Area. This
Agreement is made pursuant to the Redevelopment Plan. The Developer has reviewed the
Redevelopment Plan and agrees to perfonn under this Agreement in confonnity with the
Redevelopment Plan and this Agreement.
1.6 Reoresentations and Warranties.
1.6.1 A2encv Reoresentations. Agency represents and warrants to Developer as
follows:
(a) Authoritv. Agency is a public body, corporate and politic, existing
pursuant to the California Community Redevelopment Law (California Health and Safety Code
Section 33000), which has been authorized to transact business pursuant to action of the City.
Agency has full right, power and lawful authority to lease the Site as provided herein and the
execution, perfonnance, and delivery of this Agreement by Agency has been fully authorized by all
requisite actions on the part of Agency. The parties who have executed this Agreement on behalf of
Agency are authorized to bind Agency by their signatures hereto.
(b) Liti2ation. To the best of Agency's knowledge, there are no actions,
suits, material claims, legal proceedings, or arty other proceedings affecting the Site or any portion
thereof, at law or in equity before any court or governmental agency, domestic or foreign.
(c) No Conflict. To the best of Agency's knowledge, Agency's
execution, delivery, and perfonnance of its obligations under this Agreement will not constitute a
10
DOCSOC\88180Sv 1 O'a2707 .0007
--'"-.---------,---------------.-------.--. -'_._---,-_.__._,--~ ----------------._-_._---~,- ,..,
default or a breach under any contract, agreement or order to which Agency is a party or by which it
is bound.
(d) No A2encv Bankruotcv. Agency is not the subject of a bankruptcy
proceeding.
Until the recordation of the Agency Developer CC&Rs, Agency shall, upon learning of any
fact or condition which would Cause any of the warnmties and representations in this Section 1.6.1
not to be true as of the Conveyance, immediately give written notice of such fact or condition to
Developer. Such exception(s) to a representation shall not be deemed a breach by Agency hereunder,
but shall constitute an exception which Developer shall have a right to approve or disapprove if such
exception would have an effect on the value and/or operation of the Site. If Developer elects to
proceed With the recordation of the Agency Developer CC&Rs following disclosure of such
infonnation, Agency's representations and warnmties contained herein shall be deemed to have been
made as of the date of such recordation, subject to such exception(s).
1.6.2 Develooer Reoresentations. Developer represents and warrants to Agency
as follows:
(a) Authoritv. Developer is a duly organized limited partnership
organized within and in good standing under the laws of the State of California. Developer has full
right, power and lawful authority to lease and accept title to and possession of the Site and undertake
all obligations as provided herein and the execution, perfonnance and delivery of this Agreement by
Developer has been fully authorized by all requisite actions on the part of the Developer. The parties
who have executed this Agreement on behalf of Developer are authorized to bind Developer by their
signatures hereto.
(b) Liti2ation. To the best of Developer's knowledge, there are no
actions, suits, material claims, legal proceedings, or any other proceedings affecting the Developer, at
law or in equity before any court or governmental agency, domestic or foreign.
(c) No Conflict. To the best of Developer's knowledge, Developer's
execution, delivery, and perfonnance of its obligations under this Agreement will not constitute a
default or a breach under any contract, agreement or order to which Developer is a party or by which
it is bound.
(d) No Develooer Bankruotcv. Developer is not the subject of a
bankruptcy proceeding.
(e) Develooer Exoerience: Soohisticated Party. The Principals of
Developer are sophisticated parties, with substantial experience in the acquisition, rehabilitation,
development, financing, obtaining financing for, marketing, and operation of affordable housing
projects, including rental projects for Seniors, and with the negotiation, review, and preparation of
agreements and other documents in connection with such activities. The Developer is familiar with
and has reviewed all laws and regulations pertaining to the development and operation of the
Development, including without limitation the Tax Credit Rules, and has obtained advice from any
advisers of its own choosing in connection with this Agreement.
11
D()CS()c\881805vl0~2707.0007
--~~'~---'---'------~----------'----'._-~", --"_._-,--
(t) Due Authorization and Execution: Studies Comoleted. Developer
has duly authorized the execution of this Agreement, the Agency Developer CC&Rs, the Agency
Note and the Agency Deed of Trust. Developer is ready, willing and able to execute the Agency
Developer CC&Rs, the Agency Note, the Agency Deed of Trust, and has conducted all studies
necessary to proceed with the Development. Concurrently with the execution of this Agreement by
Agency or within three (3) calendar days thereafter, Developer shall execute and deposit with the
Agency (to be held pending satisfaction of the Condition Precedent to Conveyance as set forth in
Section 3.1 hereunder) the Agency Developer CC&Rs, the Agency Note, the Agency Deed of Trust,
and all documents necessary to effectuate the development and operation of improvements as
required under this Agreement.
Until the recording of the Agency Developer CC&Rs, Developer shall, upon learning of any
fact or condition which would cause any of the warranties and representations in this Section 1.6.2
not to be true as of the Conveyance, immediately give written notice of such fact or condition to
Agency. Such exceptiones) to a representation shall not be deemed a breach by Developer hereunder,
but shall constitute an exception which Agency shall have a right to approve or disapprove if such
exception would have an effect on the development and/or operation of the Site. If Agency elects to
proceed with the recording of the Agency Developer CC&Rs following disclosure of such
infonnation, Devetoper's representations and warranties contained herein shall be deemed to have
been made as of the recording of the Agency Developer CC&Rs, subject to such exceptiones).
1.7 Retention of Certain Moneys by Ae:ency. The Agency shall retain all moneys
disbursed by the Developer to the Agency prior to the Date of Agreement, including without
limitation that money disbursed to the Agency under that certain "Applicant Agreement" between the
Agency and the Developer dated as of October 31, 2003.
2. DISPOSITION OF THE SITE
2.1 Acauisition of the Site: Oblie:ation to Develoo and Ooerate.
The Developer warrants and represents that it has undertaken and completed at its expense an
investigation of the Site, including without limitation condition of title, the presence of any
hazardous materials and other surface and subsurface conditions, and the suitability of the Site for the
Improvements required pursuant to this Agreement. The Developer has selected the Site and has
detennined that it is suitable for all development and uses as provided for pursuant to this
Agreement. Prior to the Date of Agreement, the Developer has obtained a preliminary title report by
the Title Company. Developer has reviewed the condition of title to the Site and the condition of the
Site (as more fully set forth in Section 2.3 of this Agreement), and all such matters are satisfactory to
the Developer.
The Developer hereby waives, releases and discharges forever, and indemnifies the Agency
and the City, and their employees, offi&ers, agents and representatives, from all present and future
claims, demands, suits, legal and administrative proceedings and from all liability for damages,
losses, costs, liabilities, fees and expenses, present and future, arising out of or in any way connected
with the condition of the Site, any Hazardous Materials on the Site, or the existence of Hazardous
Materials Contamination due to the generation of Hazardous Materials from the Site, however they
came to be placed there, except that arising out of the negligence or misconduct of the Agency or its
employees, officers, agents or representatives.
12
DOCSOC\881805vl 0\22707 .0007
- '-'------ ---- -"-._---,._~._-- -- ~-'--------~--------" _.,.----
_~_"___"'_',"~'~a._
The Developer acknowledges that it is aware of and familiar with the provisions of
Section 1542 of the California Civil Code which provides as follows:
"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."
The Developer waives and relinquishes all rights and benefits which it may have under
Section 1542 of the California Civil Code.
In consideration of the provision of the Agency Disbursement Amount, the Developer shall
develop the Site and operate the Improvements as an affordable housing project in strict confonnity
with this Agreement and shall make all Residual Receipts Note Payments, and shall comply with and
cause the use of the Site in confonnance with the Agency Developer CC&Rs throughout the
Required Covenant Period.
2.2 DeveloDer Pavments. The Agency Note provides for the Developer to make,
payments to the Agency, which obligation is further evidenced by the Agency Note; Excepting for
amounts payable to the Agency pursuant to Section 4.7 of this Agreement (which amounts shall be
payable as therein provided), amounts payable to the Agency shall be paid in accordance with the
tenns of the Agency Note.
3. THE AGENCY DISBURSEMENT AMOUNT; PAYMENTS UNDER THE AGENCY
NOTE
3.1 A2encv's Conditions to Disbursement of the A2encv Disbursement Amount. The
Agency shall not disburse any portion of the Agency Disbursement Amount to the Developer, as
provided pursuant to this Agreement, unless and until each and every one of the following conditions
precedent (the "Conditions Precedent to Disbursement") has been fully satisfied, as detennined in
good faith by the Executive Director (each of which condition[ s], if it requires action by Developer,
shall also be a covenant of Developer):
(a) Recordin2 of Certain Documents. The Agency Developer CC&Rs and the
Memorandum of Agreement and the Agency Deed of Trust have been recorded.
(b) Evidence of Financin2. Developer shall have provided written proof
acceptable to Agency that the Developer has sufficient internal funds and/or has obtained a loan or
financing, subject to customary conditions, for construction of the Development, and Agency has
approved such evidence of financing, in accordance with Sections 4.15 and 4.15.1.1 hereof. In the
event Developer obtains a loan or financing for the construction of the Development, such
construction loan or financing for the Development shall be ready to close, and shall close, and a
portion of proceeds from the sale of Tax Credits, as described in Section 4.15.1.1, shall be
immediately available for use in constructing the Improvements.
(c) Owner/A2encv Indemnitv. Owner shall have provided the Owner/Agency
indemnity (as described in Section 2.1.1 hereof) infonn and substance acceptable to Agency.
(d) Seniors Reauirement. The construction and permanent lenders have agreed
that requirement of this Agreement concerning occupancy by Seniors shall remain in effect
13
DOCSOC\88180Sv 1 0\22707.0007
-'___..__.,,___w_._._____.__.._n..._. _.._.__,.._ -~-_. ---.....--.,..-
. '-"_.'-"-'''-'''-"''--'-'...y,--
throughout the Required Covenant Period without regard to whether such lenders foreclosed on the
Property and remarket the Property.
(e) Develooer Cost Disbursement. The Developer shall have made the
Developer Cost Disbursement in confonnity with Section 1.7
(t) Construction Contract. Developer shall have provided to the Agency a
signed copy of a fixed-price contract or a not-to-exceed contract between the Developer and the
general contractor for the construction of the Development, certified by the Developer to be a true
and correct copy thereof, and Executive Director shall have approved such contractor or contractors,
and the construction contract or contracts, pursuant to Section 4.15 hereof. The parties acknowledge
that the Principals are or may be Related Parties to the Developer. However, nothing contained in
this subsection (t) shall be deemed to create any responsibility or liability on the part of Agency for
selection of the contractor(s) of for construction of the Improvements, the Developer being solely
responsible for such activities.
(g) Payment. Performance and Comoletion, Bonds. Developer shall have
obtained payment bonds and perfonnance and completion bonds for off-site improvements as may be
required by City in connection with the development of the Site, in an amount and trom a surety
company reasonably acceptable to the Executive Director. All bonds shall be issued by good and
solvent sureties qualified to do business in California and shall have a rating of A or better in the
most recent edition of Best's Key Rating Guide.
(h) Confirmation bv Lender Concernin2 Disbursements. The Agency shall
have received written confinnation ftom a reasonably acceptable construction lender that such lender
agrees to cause the disbursement of funds consistent with Section 4.16 of this Agreement or that such
construction lender acknowledges that the disbursement of the Agency Disbursement Amount will be
accomplished by Agency in the manner described in Section 4.16 of this Agreement.
(i) TCAC Aooroval. All TCAC approvals required in connection with the
Preliminary Reservation of 4% Tax Credit for the Project have been obtained and remain in full force
and effect.
(j) Insurance. Agency shall have received evidence, satisfactory to Executive
Director, that all of the insurance policies required by Section 4.5, below, are in full force and effect.
(k) Bonds. Multifamily housing bonds shall have issued for the Project on or
before the Closing Deadline (Bonds).
(1) Reoresentations and Warranties. The representations and warranties of
Developer contained in this Agreement shall be correct as of the request for disbursement of the
Agency Disbursement Amount as though made on and as of that date, and Executive Director shall
have received a certificate to that effect signed by an officer of Developer.
(m) No Default. No Event of Default by Developer shall have occurred under
this Agreement, no event shall have occurred which, with the giving of notice or the passage of time
or both, would constitute an Event of Default by Developer under this Agreement, and Executive
Director shall have received a certificate to that effect signed by an officer of Developer.
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DOCSOC\88180Svl 0\22707 .0007
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All conditions set forth in Section 3.1, or to Agency's obligations hereunder, are for
Agency's benefit only and Executive Director may waive all or any part of such rights by written
notice to Developer. If Executive Director shall, within the applicable periods set forth herein,
,disapprove of any of the items which are subject to Agency's approval, or if any of the conditions set
forth in this Agreement are not met within the times called for, Agency may thereafter tenninate this
Agreement without any further liability on the part of Agency by giving written notice of tennination
to Developer. Escrow Holder shall thereupon, without further consent from Developer, return to
each party the documents and funds deposited by them.
3.2 A2encv Disbursement Amount. Subject to the prior satisfaction of the Conditions
Precedent, the Agency agrees to disburse to the Agency Disbursement Amount. Disbursement of the
Agency Disbursement Amount shall be accomplished at the time(s) and in the manner prescribed by
Section 4.16 of this Agreement. The Agency Disbursement Amount is being disbursed as a loan, and
shall be repaid from Residual Receipts as set forth in the Agency Note. The Agency Note shall be
secured by the Agency Deed of Trust. The Agency Deed of Trust is to be recorded against the Site
(which deed of trust shall be subordinate to liens securing repayment of the Primary Construction
Loan and the Primary Pennanent Loan).
3.3 A2enev Note: Determination of Certain Matters. The Developer shall, prior to
disbursement of any of the Agency Disbursement Amount by Agency, execute and deliver to Agency
the Agency Note, and shall additionally execute and cause to be recorded as to the Site the Agency
Deed of Trust and the Memorandum of Agreement. The Developer shall make all payments as
provided under the Agency Note.
Within thirty (30) days after completion of the Improvements, the Developer shall submit a
detailed written report to Executive Director identifying and describing project costs, which report
specifically addresses all components of Residual Receipts and Developer's Equity, and includes an
Audited Financial Statement. The Executive Director or his designee shall review such report and
shall make a good faith detennination as to: (i) that amount which shall be deemed to constitute
Developer's Equity, and (ii) that amount, in accordance with TCAC practices, shall constitute the
Developer's Fee; such detenninations by the Executive Director shall be final. The Developer shall
submit such infonnation as may be requested from time to time by the Executive Director.
The Developer shall annually, at the time the Developer makes its Audited Financial
Statement to tax credit investors or its lenders, but not later than March 15 as to the preceding
calendar year, submit its Audited Financial Statement to the Agency. Such submittals shall continue
until the Agency Note has been satisfied and the Agency Deed of Trust reconveyed.
4. SCOPE OF DEVELOPMENT; INSURANCE AND INDEMNITY, FINANCING
4.1 SeoDe of DeveloDment. The Developer shall develop the Improvements in
accordance with the Scope of Development, and the approved plans, drawings and documents for the
Improvements. In the event of any inconsistency between the Scope of Development and the plans
for the Improvements which have been approved by the Agency and/or City, the approved
Development plans shall control.
15
DOCSOC\88180Sv 1 0\22707 .0007
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4.2 Desie:n Review.
4.2.1 Develooer Submissions. Prior to the Date of Agreement, in connection with
its application for land use approvals by the City, the Developer has submitted "Basic Concept
Drawings" for the Improvements. Before commencement of construction of the Improvements or
other works of improvement upon the Site, the Developer shall submit to the City any plans and
drawings (collectively, the "Design Development Drawings") which may be required by the City
with respect to any permits which are required to be obtained to develop the Improvements, which
the City shall comment on and return to the Developer within fifteen (15) days ffom the date of
receipt thereof. Developer, on or prior to the date set forth in the Schedule of Performance, shall
submit to the City such plans for the Improvements as required by the City in order for Developer to
obtain building permits for the Improvements. Within thirty (30) days after the City's disapproval or
conditional approval of such plans, Developer shall revise the portions of such plans identified by the
City as requiring revisions and resubmit the revised plans to the City.
4.2.2 City Review and Aooroval. The City shall have all rights to review and
approve or disapprove all Design Development Drawings modified or first submitted after the Date
of Agreement and other required submittals in accordance with the City Municipal Code, and nothing
set forth in this Agreement shall be construed to constitute the City's approval of any or all of the
Design Development Drawings or to limit or affect the City's review and right to approve, approve
subject to conditions, or disapprove Design Development Drawings, plans, drawings, applications, or
submittals.
4.2.3 Revisions. Any and all change orders or revisions required by the City and
its inspectors which are required under the Municipal Code and all other applicable Uniform Codes
(e.g. Building, Plumbing, Fire, Electrical, etc.) and under other applicable laws and regulations shall
be included by the Developer in its Design Development Drawings and other required submittals and
shall be completed during the construction of the Improvements.
4.2.4 Defects in Plans. The Agency and the City shall not be responsible either to
the Developer or to third parties in any way for any defects in the Design Development Drawings,
nor for any structural or other defects in any work done according to the approved Design
Development Drawings, nor for any delays reasonably caused by the review and approval processes
established by this Section 4.2.4.
4.2.5 Land Use Aoorovals. Before commencement of construction of the
Improvements or other works of improvement upon the Site, the Developer shall, at its own expense,
secure or cause to be secured any and all land use and other entitlements, permits, and approvals
which may be required for the Improvements by the City or any other governmental agency affected
by or having jurisdiction over such construction or work, except for those which are the
responsibility of Agency as set forth herein. The Developer shall, without limitation, apply for and
secure, and pay all costs, charges and fees associated therewith, all permits and fees required by the
City, County of San Luis Obispo, and other governmental agencies with jurisdiction over the
Improvements.
4.3 Time of Performance: Proe:ress Reoorts. The Developer shall submit all Design
Development Drawings, commence and complete all construction of the Improvements, and satisfy
all other obligations and conditions of this Agreement within the times established therefor in this
Agreement. Construction of the Improvements shall be commenced on or before the time established
16
IX>CS0C\881805v 1 O\l2707 .0007
---- ..---.-....-
therefor in the Schedule of Performance. Once construction is commenced, it shall continuously and
diligently be pursued to completion and shall not be abandoned for more than fifteen (15) days
except when due to causes beyond the control and without the fault of Developer as set forth in
Section 7.I(e). During the course of construction and prior to issuance of the Certificate of
Completion, Developer shall provide timely reports of the progress of construction when requested
by the Executive Director. Developer shall complete construction of all of the Improvements by the
time established therefor in the Schedule of Performance.
4.4 Cost of Construction. The cost of planning, designing, developing, and constructing
the Improvements shall be borne solely by the Developer; excepting for the disbursement by Agency
of the Agency Disbursement Amount by the Agency as provided herein. All fees imposed by any
governmental entity in connection with the acquisition of the Site or the development of the
Improvements shall be borne by Developer and shall be paid when due by Developer.
4.5 Insurance Reauirements. Commencing as of Conveyance and continuing
throughout the Required Covenant Period, Developer shall maintain at Developer's sole expense,
with insurers reasonably approved by Agency, the following policies of insurance in form and
substance reasonably satisfactory to Agency:
(a) workers' compensation insurance and any other insurance required by law in
connection with the Improvements or other work performed on the Site (to be in effect only while
work is being performed on the Site);
(b) upon commencement of construction of the Improvements and at all times
prior to completion of the Improvements, builder's risk-all risk insurance covering 100% of the
replacement cost of all Improvements (including offsite and the materials) during the course of
construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief
and all other risks normally covered by "all risk" coverage policies in the area where the Site is
located (including loss by flood if the Site is in an area designated as subject to the danger of flood);
(c) following completion of the Improvements, fire and hazard "all risk"
insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning,
windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all
risk" coverage policies in the area where the Site is located (including loss by flood if the Site is in an
area designated as subject to the danger of flood);
(d) public liability insurance in amounts reasonably required by the Executive
Director &om time to time, and in no event less than $2,000,000 for "single occurrence;"
(e) property damage insurance in amounts reasonably required by the Executive
Director from time to time, and in no event less than $2,000,000; and
(f) all other insurance reasonably required by the Executive Director &om time
to time.
All such insurance shall provide that it may not be canceled or materially modified
without 30 days prior written notice to Agency. The policies required under subparagraphs (b) and
(c) shall include a "lender's loss payable endorsement" (Form 438BFU) in form and substance
satisfactory to Agency, showing Agency as an additional insured and loss payee. Agency shall be an
17
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-- -------_.~~----.---,.,."- -----+
additional insured in the policies required under subparagraphs (d) and (e). No such insurance shall
include deductible amounts to which Agency has not previously consented in writing. Certificates of
insurance for the above policies (and/or original policies, if required by Agency) shall be delivered to
Agency from time to time within 10 days after demand therefor. All policies insuring against
damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of
co-insurance. No less than thirty (30) days prior to the expiration of each policy, Developer shall
deliver to Agency evidence of renewal or replacement of such policy reasonably satisfactory to the
Executive Director.
Coverage provided hereunder by Developer shall be primary insurance and not be
contributing with any insurance maintained by Agency or City, and the policy shall contain such an
endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the
benefit of the City and Agency. None of the above-described policies shall require Developer to
meet a deductible or self-insured retention amount of more than Five Thousand Dollars ($5,000.00)
unless approved in writing by the Executive Director. All policies shall be written by good and
solvent insurers qualified to do business in California and shall have a policyholder's rating of A or
better in the most recent edition of "Best's Key Rating Guide -- Property and Casualty." The
required certificate shall be furnished by Developer at the time set forth herein.
4.5.2 Waiver of Subrol!ation. Developer hereby waives all rights to recover
against Agency (or any officer, employee, agent or representative of Agency) for any loss incurred
by Developer from any cause insured against or required by any Project Document to be insured
against; provided, however, that this waiver of subrogation shall not be effective with respect to any
insurance policy if the coverage thereunder would be materially reduced or impaired as a result.
Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of
subrogation.
4.6 Oblil!ation to ReDair and Restore Damal!e Due to Casualty. If during the period
of construction the Improvements shall be totally or partially destroyed or rendered wholly or partly
uninhabitable by fire or other casualty required to be insured against by Developer, Developer shall
promptly proceed to obtain insurance proceeds and take all steps necessary to begin reconstruction
and, immediately upon receipt of insurance proceeds, to promptly and diligently commence the
repair or replacement of the Improvements to substantially the same condition as the Improvements
are required to be constructed pursuant to this Agreement, and Developer shall complete the same as
soon as possible thereafter so that the Improvements can be occupied as an affordable housing
project in accordance with this Agreement. In no event shall the repair, replacement, or restoration
period exceed fourteen (14) months from the date Developer obtains insurance proceeds unless the
Executive Director, in his or her sole and absolute discretion, approves a longer period of time.
Agency shall cooperate with Developer, at no expense to Agency, in obtaining any governmental
permits required for the repair, replacement, or restoration. If, however, the then-existing laws of
any other governmental agencies with jurisdiction over the Site do not permit the repair, replacement,
or restoration, Developer may elect not to repair, replace, or restore the Improvements by giving
notice to Agency (in which event Developer will be entitled to all insurance proceeds after paying to
Agency from such proceeds an amount equal to any assistance expended by Agency but Developer
shall be required to remove all debris from the Site) or Developer may reconstruct such other
improvements on the Site as are consistent with applicable land use regulations and approved by the
City, Agency, and the other governmental agency or agencies with jurisdiction, and the Agency may
pursue remedies of its choosing under this Agreement, including without limitation termination.
18
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-~......,--_.~... ---.. .....--.-,..-.-.-
4.7 Indemnitv. Developer shall defend (by counsel satisfactory to Agency), indemnify
and save and hold hannless Agency and City and their officers, contractors, agents and employees
(collectively, the "Indemnitees") from and against all claims, damages, demands, actions, losses,
liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) arising
from or relating to: (i) this Agreement (including without limitation Section 4.9 hereof); (ii) the
disbursement of the Agency Disbursement Amount; (iii) a claim, demand or cause of action that any
person has or asserts against Developer; (iv) any act or omission of Developer, any contractor,
subcontractor or material supplier, engineer, architect or other person with respect to the Site; or
(v) the ownership, occupancy or use of the Site. Notwithstanding the foregoing, Developer shall not
be obligated to indemnify the Agency with respect to the consequences of any act of gross
negligence or willful misconduct of the Agency. Developer's obligations under this Section 4.7 shall
survive the issuance of the Certificate of Completion and tennination of this Agreement; the
requirements under this Section 4.7 are in addition to and do not limit the obligations of the
Developer under the Agency Developer CC&Rs.
The Developer shall reimburse the Agency immediately upon written demand for all
costs reasonably incurred by the Agency (including the reasonable fees and expenses of attorneys,
accountants, appraisers and other consultants, whether the same are independent contractors or
employees of Agency) in connection with the enforcement of the Project Documents and all related
matters including the following: (a) the Agency's commencement of, appearance in, or defense of
any action or proceeding purporting to affect the rights or obligations of the parties to any Project
Document, and (b) all claims, demands, causes of action, liabilities, losses, commissions and other
costs against which the Agency is indemnified under the Project Documents. Such reimbursement
obligations shall bear interest from the date occurring ten (10) days after the Agency gives written
demand to the Developer at the Applicable Interest Rate (Section 4.7). Such reimbursement
obligations shall survive the issuance of the Certificate of Completion and tennination of this
Agreement and are in addition to and do not limit the obligations of the Developer under the Agency
Developer CC&Rs.
The Developer shall indemnify the Agency from any real estate commissions or
brokerage fees which may arise from this Agreement or the Site, including without limitation the
acquisition of the Site by the Developer, or the leasing of dwelling units on the Site. The Developer
represents that it has engaged no broker, agent, or finder in connection with this transaction, and the
Developer agrees to hold the Agency harmless from any ~laim by any broker, agent or finder in
connection with this Agreement, the activities by the Developer, or the Site.
In addition, and without limitation to the foregoing, Developer agrees to indemnify,
defend and hold Agency harmless from and against any claim, action, suit, proceeding, loss, cost,
damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without
limitation, reasonable attorneys' fees), resulting from, arising out of, or based upon (i) the presence,
release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or
about, or the transportation of any such Hazardous Materials to or from, the Site which occurs after
the first to occur of (i) the acquisition ofthe Site by Agency (or Developer) or (ii) the Conveyance, or
(ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, pennit,
judgment or license relating to the use, generation, release, discharge, storage, disposal or
transportation of Hazardous Materials on, under, in or about, to or from, the Site which occurs after
the first to occur of (i) the acquisition of the Site by Agency (or Developer) or (ii) the Conveyance.
This indemnity shall include, without limitation, any damage, liability, fine, penalty, parallel
indemnity after closing cost or expense arising from or out of any claim, action, suit or proceeding
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for personal injury (including sickness, disease or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic loss, damage to the natural
resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on
the environment. At the request of the Developer, the Agency shall cooperate with and assist the
Developer in its defense of any such claim, action, suit, proceeding, loss, cost, damage, liability,
deficiency, fine, penalty, punitive damage, or expense; provided that the Agency shall not be
obligated to incur any expense in connection with such cooperation or assistance. Upon the Closing,
the Developer shall take all necessary precautions to prevent the release into the environment of any
Hazardous Materials which are located in, on or under the Site. Such precautions shall include
compliance with all Governmental Requirements with respect to Hazardous Materials. In addition,
the Developer shall install and utilize such equipment and implement and adhere to such procedures
as are consistent with commercially reasonable standards as respects the disclosure, storage, use,
removal and disposal of Hazardous Materials.
4.8 Rie:hts of Access. Prior to the issuance of the Certificate of Completion, for purposes
of assuring compliance with this Agreement, representatives of Agency shall have the right of access
to the Site, without charges or fees, at nonnal construction hours during the period of construction for
the purposes of this Agreement, including but not limited to, the inspection of the work being
perfonned in constructing the Improvements so long as Agency representatives comply with all
safety rules. Agency representatives shall, except in emergency situations, notify the Developer prior
to exercising its rights pursuant to this Section 4.8.
4.9 ComDliance With Laws. Developer shall carry out the design, construction and
operation of the Improvements in confonnity with all applicable laws, including all applicable state
labor standards (including without limitation provisions for payment of prevailing wages to the
extent applicable), the City zoning and development standards, building, plumbing, mechanical and
electrical codes, and all other provisions of the City Municipal Code, and the Fair Housing Act,
42 U.S.C. Section 3601 et seq. (and 24 C.F.R. Part 100), the Americans With Disabilities Act,
42 U.S.c. Section 12101, et seq., Government Code Section 4450, et seq., Government Code
Section 11135, et seq., the Unruh Civil Rights Act, Civil Code Section 51, et seq., and the California
Building Standards Code, Health and Safety Code Section 18900, et seq.
4.10 Nondiscrimination in EmDlovment. Developer certifies and agrees that all persons
employed or applying for employment by it, its affiliates, subsidiaries, or holding companies are and
will be treated equally by it without regard to, or because of race, color, religion, ancestry, national
origin, sex, sexual orientation, age, pregnancy, childbirth or related medical condition, medical
condition (cancer related) or physical or mental disability.
4.11 Taxes and Assessments. Developer shall pay prior to delinquency all ad valorem
real estate taxes and assessments on the Site. Developer shall remove or have removed any levy or
attachment made on any of the Site or any part thereof which is owned or leased by Developer, or
assure the satisfaction thereof within a reasonable time, but in no event to exceed sixty (60) days. The
Developer shall additionally defend, indemnify, and hold hannless the Agency and the City from and
against any taxes, assessments, mechanic's liens, claims of materialmen and suppliers, or other
claims by private parties in connection with (a) activities undertaken by the Developer or (b) the Site.
4.12 . Liens and StOD Notices. Developer shall not allow to be placed on the Site or any
part thereof any mechanic's or materialmen's lien or stop notice. If a claim of a lien or stop notice is
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- ------------------ ---- ,- -----
given or recorded affecting the Improvements the Developer shall within thirty (30) days of such
recording or service or within five (5) days of Agency's demand whichever last occurs:
(a) pay and discharge the same; or
(b) affect the release thereof by recording and delivering to Agency a surety bond
. ,
in sufficient fonn and amount, or otherwise; or .
(c) provide Agency with indemnification from the Title Company against such
lien or other assurance which Agency deems, in its sole discretion, to be satisfactory for the payment
of such lien or bonded stop notice and for the full and continuous protection of Agency from the
effect of such lien or bonded stop notice.
4.13 Certificate of ComDletion. Promptly after completion of the Improvements in
confonnity with this Agreement, Agency shall furnish the Developer with a "Certificate of
Completion," substantially in the fonn of attached hereto. Agency shall not unreasonably withhold
such Certificate of Completion. The Certificate of Completion shall be a conclusive detennination of
satisfactory completion of the Improvements and the Certificate of Completion shall so state. Any
party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Site or
such applicable portion shall not (because of such ownership, purchase, lease or acquisition) incur
any obligation or liability under this Agreement except for those continuing covenants as set forth in
documents recorded against the Site prior to the recordation of the Certificate of Completion. If
Agency refuses or fails to furnish a Certificate of Completion after written request from Developer,
Agency shall, within fifteen (15) days of receipt of written request therefor, provide Developer with a
written statement of the reasons Agency refused or failed to furnish the Certificate of Completion.
The statement shall also contain Agency's opinion of the actions Developer must take to obtain the
Certificate of Completion. The Certificate of Completion is not a notice of completion as referred to
in Section 3093 of the California Civil Code.
4.14 Further Assurances. Developer shall execute and acknowledge (or cause to be
executed and acknowledged) and deliver to Agency all documents, and take all actions, reasonably
required by Agency from time to time to confinn the rights created or now or hereafter intended to be
created under the Project Documents or otherwise to carry out the purposes of the Project
Documents.
4.15 FinancinS! of the ImDrovements.
4.15.1 ADDroval of FinaneinS!. As required herein and as an Agency Condition
Precedent to the disbursement of the Agency Disbursement Amount, Developer shall submit to
Agency evidence that Developer has obtained sufficient equity capital or has arranged for and
obtained a binding commitment for construction financing necessary to' undertake the development
of the Site and the construction of the Improvements in accordance with this Agreement ("Proof of
Financing Commitments").
The Agency shall reasonably approve or disapprove such evidence of financing
within twenty (20) days of receipt of each of the respective submittals, provided that such submittal
is complete. Approval shall not be unreasonably withheld so long as the tenns and conditions of the
financing are consistent with this Agreement, including without limitation acknowledgment and
consent by such lender to the Agency Developer CC&Rs, and are otherwise reasonable and
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_._~-------> ---~,._--.,.- -- ~-~--,--,---,,-
--,.._...._-'---_..~..~.>_._"
customary. Such consent may be included in an "Inter-Creditor Agreement" in connection with
which the Agency will agree to subordinate, for the benefit of such lender, the obligation to pay
Residual Receipts Note Payments in the event such lender should acquire the Developer's interest in
the Site upon foreclosure by such lender. The failure or refusal by the Agency to approve financing
that does not satisfy the foregoing criteria shall conclusively be deemed to be reasonable. If Agency
shall disapprove any such evidence of financing, Agency shall do so by Notice to Developer stating
the reasons for such disapproval and Developer shall endeavor to promptly obtain and submit to
Agency new evidence of financing. Agency shall approve or disapprove such new evidence of
financing in the same manner and within the same times established in this Section 4.15.1 for the
approval or disapproval of the evidence of financing as initially submitted to Agency. Developer
shall close the approved financing prior to or conculTently with the Closing.
The Proof of Financing Commitment shall include a copy of a legally binding, firm
and enforceable loan commitment(s) obtained by Developer from one or more financial institutions
for the mortgage loan or loans for financing to fund the construction and completion of the
Improvements.
(a) Tax Credits. The parties intend that the Developer is to obtain equity
financing for the construction and operation of the Development including the use of Tax Credits and
obtaining capital contributions from limited partners in the Development in consideration primarily
for the receipt of the Tax Credits received by the Developer with respect to the Development. In the
event an allocation of Tax Credits is not obtained by the Developer or the Developer is unable to
cause Tax Credits to be marketed generating capital for construction of the Improvements concurrent
with the issuance of multifamily conduit revenue bonds, as a provided in subsection (b) of this
Section 4.15.1, this Agreement shall be subject to termination by the Agency. The following
requirements must be satisfied in order for the financing utilizing Tax Credits to be approved by the
Agency pursuant to this Section 4.15.1:
(i) The equity investment of the limited partners shall not be less
than thirty percent (30%) of the Tax Credits awarded, as reasonably determined by the
Executive Director.
(ii) Not less than sixty-five percent (65%) of such equity
investment shall be payable no later than the completion of construction of the
Improvements, as evidenced by the issuance of the Certificate of Completion for the
Improvements.
The Developer understands and agrees that Developer and/or one or more of the Principals of
Developer may be required to provide an operating deficit guaranty, tax credit recapture guaranty,
and/or other guaranties which may be required with respect to the limited partners' investment in the
Development. If required for such financing, the execution of such guaranties shall be an additional
Condition Precedent for the purposes of Section 3.1.
Developer shall submit the following documents as evidence of financing: (a) a copy of a
legally binding, firm and enforceable loan commitment(s) or approva1(s) obtained by the Developer
from unrelated financial institutions for the mortgage loan or loans for financing to fund the
construction of the Development, subject to such lenders' reasonable, customary and normal
conditions and terms, (b) a limited partnership agreement or funding agreement from the equity
investors in the Development which demonstrates that Developer has sufficient funds for such
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construction, and that such funds have been committed to such construction, and a current financial
statement of Developer and Developer's other sources of equity capital, (c) a copy of a Preliminary
Reservation of Tax Credits (and when available, the Final Reservation of Tax Credits) from the
California Tax Credit Allocation Committee for Tax Credits for the construction of the Development
(or other evidence satisfactory to the Executive Director that Tax Credits will be available), (d) a
binding agreement for the purchase of the Tax Credits, and/or (e) other documentation satisfactory to
Agency as evidence of other sources of capital, all of which together are sufficient to demonstrate
that the Developer has adequate funds to construct and complete the Development.
4.15.2 No Encumbrances Except Morte:ae:es. Deeds of Trust. or Sale and
Lease-Back for Development. Mortgages and deeds of trust shall be pennitted before the
completion of the Improvements only with the Agency's prior written approval, which shall not be
unreasonably withheld as more fully described in Section 4.15.2, but only for the purpose of securing
loans of funds to be used for financing the construction of the Improvements (including architecture,
engineering, legal, construction period canying costs such as property taxes, insurance and interest,
acquisition and land costs and related direct costs as well as indirect costs) on or in connection with
the Site, and the obtaining of a pennanent loan in the amount of the outstanding balance of the
construction loan. In no event, however, shall the amount or amounts of indebtedness secured by
mortgages or deeds of trust on the Developer's interest as to the Site exceed the projected
Developer's cost, as evidenced by a pro fonna and a construction contract which have been delivered
to the Executive Director prior to the Date of this Agreement and which set forth such costs, unless
the written approval of the Executive Director is first obtained. The Developer shall notify the
Agency in advance of any mortgage, deed of trust or sublease and sublease-back financing, if the
Developer proposes to enter into the same before completion of the construction of the
Improvements. No liens shall be pennitted on the Site, excepting only as to Developer's interest in
the Site. Upon receipt of Developer's request therefor, Agency agrees to subordinate the Agency
Deed of Trust and its rights to receive Residual Receipts (under the Agency Note) to Pennitted
Senior Liens, so long as such lender(s) agree to provide reasonable notice and the right but not the
obligation for the Agency to cure. The Agency authorizes the Executive Director to execute such
instruments on behalf of the Agency without necessity of further action by the governing board of the
Agency.
4.15.3 Holder Not Oblie:ated to Construct Improvements. The holder of any
mortgage or deed of trust on the Developer's interest in the Site authorized by this Agreement shall
not be obligated by the provisions of this Agreement to construct, complete, or operate the
Improvements or any portion thereof, or to guarantee such construction, completion or operation; nor
shall any covenant or any other provision in this Agreement be construed so to obligate such holder.
Nothing in this Agreement shall be deemed to pennit or authorize any such holder to devote the Site
to any uses or to construct any improvements thereon, other than those uses or improvements
provided for or authorized by this Agreement.
4.15.4 Notice of Default to Morte:ae:ee or Deed of Trust Holders: Rie:ht to Cure.
With respect to any mortgage or deed of trust granted by Developer as to the Site as provided herein,
whenever the Agency may deliver any notice or demand to Developer with respect to any breach or
default by the Developer under this Agreement, the Agency shall at the same time deliver to each
holder of record of any mortgage or deed of trust authorized by this Agreement a copy of such notice
or demand; provided that the failure to notify any holder of record shall not vitiate or affect the
effectiveness of notice to the Developer. Each such holder shall (insofar as the rights granted by the
Agency are concerned) have the right, at its option, within sixty (60) days after the receipt of the
23
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~,.-.,-.-_._-'---,-..,-------------- --. -,~-,-,--..
notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence
the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien
of its mortgage or deed of trust. Nothing contained in this Agreement shall be deemed to permit or
authorize such holder to undertake or continue the construction or completion of the Improvements,
or any portion thereof (beyond the extent necessary to conserve or protect the improvements or
construction already made) without first having expressly assumed the Developer's obligations to the
Agency by written agreement reasonably satisfactory to the Agency. The holder, in that event, must
agree to complete, in the manner provided in this Agreement, the improvements to which the lien or
title of such holder relates, but on a schedule which takes into account the time reasonably required
for the holder to obtain title to and possession of the Developer's interest in the Site, analyze and
negotiate amendments to plans, specifications, construction contracts and operating contracts or to
negotiate new construction contracts and operating contracts. Arty such holder properly completing
such improvement shall be entitled, upon compliance with the requirements of Section 4.13 of this
Agreement, to a Certificate of Completion. It is understood that a holder shall be deemed to have
satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer
default which requires title and/or possession of the Developer's interest in the Site (or portion
thereof) if and to the extent any such holder has within such sixty (60) day period commenced
proceedings to obtain title and/or possession and thereafter the holder diligently pursues such
proceedings to completion and cures or remedies the default.
4.15.5 Failure of Holder to ComDlete ImDrovements. In any case where, sixty
(60) days after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the
Site (or interest therein) or any part thereof receives a notice from Agency of a default by the
Developer in completion of construction of any of the Improvements under this Agreement, and such
holder is not vested with ownership of the Developer's interest in Site and has not exercised the
option to construct as set forth in Section 4.15, or if it has exercised the option but has defaulted
hereunder and failed to timely cure such default, the Agency may purchase the mortgage or deed of
trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including
principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership
of the Site (or the Developer's interest therein) or any part thereof has vested in the holder, the
Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon
payment to the holder of an amount equal to the sum of the following:
(a) The unpaid mortgage or deed of trust debt at the time title became
vested in the holder (less all appropriate credits, including those resulting ftom collection and
application of rentals and other income received during foreclosure proceedings);
(b) All expenses with respect to foreclosure including reasonable
attorneys' fees;
(c) The net expense, if any, incurred by the holder as a direct result of the
subsequent management of the Site or part thereof;
(d) The costs of any improvements made by such holder;
(e) An amount equivalent to the interest that would have accrued at the
rate(s) specified in the holder's loan documents on the aggregate of such amounts had all such
amounts become part of the mortgage or deed of trust debt and such debt had continued in existence
to the date of payment by the Agency; and
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_>___._'m______.____-.____ '---.
(f) Any customary prepayment charges imposed by the lender pursuant
to its loan documents and agreed to by the Developer.
The foregoing rights shall be in addition to those measures set forth in an Inter-Creditor
Agreement, and in addition shall supplement and not limit the Agency's rights under the Agency
Developer CC&Rs or by operation oflaw.
4.15.6 Rie:ht of the Ae:encv to Cure Morte:ae:e or Deed of Trust Default. In the
event of a mortgage or deed of trust default or breach by the Developer whether prior to or after the
completion of the construction of any of the Improvements or any part thereof (continuing until the
end of the Required Covenant Period), Developer shall immediately deliver to Agency a copy of any
mortgage holder's notice of default. If the holder of any mortgage or deed of trust has not exercised
its option to construct, the Agency shall have the right but no obligation to cure the default. In such
event, the Agency shall be entitled to reimbursement &om the Developer of all proper costs and
expenses incurred by the Agency in curing such default.
In addition, the Developer, the Primary Construction Lender and the Primary Pennanent
Lender shall agree that in the event either such lender acquires the Development, including without
limitation upon exercise of foreclosure or assignment in lieu of foreclosure, such lender(s) shall so
notifY the Agency and the Agency shall have not less than sixty (60) days following receipt by
Agency of such notice (given in the manner described in Section 8.2 hereof) to purchase the interests
of such lender in the Development (including the corresponding loan) for an amount equal to the
outstanding balance of the corresponding loan. The Developer agrees to provide documentation
evidencing the relinquishment of any and all rights to the Development in such event; provided that
the failure to provide such documentation shall not be construed to mean that the Developer retains
any rights under the Agreement.
4.15.7 Limited Subordination of Covenants. It is contemplated that financing for
the Development will be provided &om funds of the Developer, bond proceeds, the Agency
Disbursement Amount, proceeds of a conventional construction loan, proceeds of a bridge loan and
proceeds obtained in connection with the marketing by the Developer of Tax Credits. In connection
with the provision of the Primary Construction Loan and the Primary Permanent Loan, Wells Fargo
has infonned the Developer that it will provide financing only in the event the Agency agrees to the
subordination of the Agency Deed of Trust and those provisions of the Agency Developer CC&Rs
that limit rents to affordable rents and limit occupants to households of specified incomes on the
basis set forth in this Section 4.15.7. Developer represents that it has diligently attempted to obtain
commitments for construction and pennanent financing which would not require a substantial
additional investment of public funds and which do not require subordination of affordability
requirements, as described above, but has been unable to do so and has detennined that no such
commitments are available without such subordination. Accordingly, subject to the tenns and
conditions set forth in the Inter-Creditor and Subordination Agreement (and specifically the rights of
the Agency to notice and an opportunity to cure and to purchase the corresponding loan), in the event
foreclosure (or assignment in lieu of foreclosure) is completed pursuant to deeds of trust securing the
Primary Construction Loan or the Primary Pennanent Loan, the subsequent purchaser and all
successors (but excepting &om the effect of such exclusion the Developer, the Principals or any
person having any financial interest in the Developer or the Principals) will accede to the rights of the
Developer under the Agency Developer CC&Rs with the exception that the requirements for
affordability and limiting incomes of occupants under the Agency Developer CC&Rs will no longer
be applicable.
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DOCSOC\88I 80Svl 0\22707 .0007
~. -....,-.. ",~-~"~ ----.---..-.--- -'-'-".--..-
4.16 Mechanics of Disbursement of A2encv Disbursement Amount.
4.16.1 Provided that the Conditions Precedent to Disbursement have first been
satisfied, the Agency shall make available to the Developer the Agency Disbursement Amount in
installments as follows: (i) fifty percent (50%) of that portion of the Agency Disbursement Amount
shall be disbursed to City toward the City's fees at the time the City customarily collects the City's
Parks and Recreation Fee; (ii) twenty five percent (25%) of that portion of the Agency Disbursement
Amount shall be disbursed to Developer upon sign-off by the City's building official for the last
structure to be built as part of the Improvements; and (iii) the balance of that portion of the Agency
Disbursement Amount shall be disbursed to Developer at Stabilized Occupancy.
4.16.2 The Agency shall have no obligation to disburse any portion of the Agency
Disbursement Amount unless and until all of the Conditions Precedent to Disbursement are first
satisfied and the Conveyance has taken place.
4.16.3 Neither the Agency nor the City shall provide any assistance pursuant to this
Agreement other than the disbursement by Agency of the Agency Disbursement Amount on the
tenns and conditions set forth in this Agreement. Excepting only for the Agency Disbursement
Amount, the Developer assumes all responsibility for any and all costs to provide the Development.
All amounts disbursed by the Agency to or for the benefit of the Developer pursuant to this
Agreement shall be applied to defray the cost of the Development.
4.16.4 The Developer has obtained advice from advisers of its choosing regarding
this Agreement and all matters which may pertain thereto, including without limitation any
consequences as to income tax or property tax, and neither the City nor the Agency has made any
representations or provided any advice in connection therewith.
4.17 Establishment and Maintenance of Accounts. At or prior to the time of
Conveyance, Developer shall establish and maintain (or shall cause the Approved Construction
and/or Pennanent Lender to establish and maintain) all accounts and funds referenced in this
Agreement, including without limitation the Capital Replacement Reserve and the Operating
Reserve.
The Developer shall provide to Agency, without charge, reports on the balances in such
accounts when such reports are made available to the limited partner and the Approved Construction
and/or Pennanent Lender but not less often than semi-annually. In addition, the Developer shall
deliver to Agency a comprehensive report which details Gross Revenues, Operating Expenses, the
Capital Replacement Reserve, the Operating Reserve, occupancy levels, compliance with the
affordable housing requirements and Senior housing requirements of this Agreement, and which shall
include an Audited Financial Statement. The report shall be delivered by Developer to Agency
within forty-five (45) days following the last day of the Year for which a report is being made. In
addition, the Developer shall make payments to the agency of "Reporting Amounts" (as provided in
the Agency Developer CC&Rs) to the extent provided therein.
The Developer agrees that: (i) the Developer shall cooperate fully with the Agency and its
designees in providing infonnation necessary or convenient, in the reasonable judgment of the
Agency, to the computation and verification of the all payments due by Developer under this
Agreement (including without limitation under the Agency Note and the Agency CC&Rs), including
without limitation a certified financial statement for the Developer each Year until the Agency Note
26
DOCSOC\881805vl 0\22707 .0007
--------",.,".------ ,-------- ---'-~--- -q. .._"~
has been fully satisfied; if the Agency has reasonable' cause to believe there has been an under-
reporting, or otherwise at the Agency's discretion, the Agency may conduct an audit. If the audit
reveals under-reporting of 3% or more of the amount payable to Agency for the cOITesponding year,
the Developer shall reimburse the Agency for the cost of the audit); and (ii) the finn of Rosenow
Spevacek Group, or another finn or economist mutually acceptable to the Agency and the Developer,
will be employed to detennine the payments due, and the costs of employing such finn shall be borne
by the Agency.
5. COVENANTS AND RESTRICTIONS
5.1 Use Covenants. Developer covenants and agrees for itself, its successors, assigns,
and every successor in interest to the Site or any part thereof, that the Developer shall devote the Site
to the uses specified in and shall operate in confonnity with this Agreement, the Agency Developer
CC&Rs and the Tax Credit Regulatory Agreement, whichever is the more restrictive in each case
unless expressly provided to contrary effect herein. All uses conducted on the Site, including,
without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall
confonn to the Redevelopment Plan and all applicable provisions of the City Municipal Code. The
Agency Developer CC&Rs shall, to the greatest feasible extent, be interpreted in a manner consistent
with the Tax Credit Regulatory Agreement; provided that in the event of express conflict which is
required under federal law incident to the issuance of filed tax credits, the Tax Credit Regulatory
Agreement shall control.
5.2 Affordable Housine Requirements.
5.2.1 Number of Affordable Units. Developer agrees to make available, restrict
occupancy to, and rent all of the Required Affordable Units at Affordable Rent in confonnity with
the Prescribed Rent Levels and Tenant Mix. An example of the calculation of Affordable Rent for
the Housing Units is attached hereto as Attachment No.5 and incorporated herein. In the event the
Tax Credit Regulatory Agreement imposes stricter rent requirements, it shall control for so long as it
remains in effect.
5.2.2 Duration of Affordabilltv Requirements. The Required Affordable Units
shall be maintained as rental units available at and rented to Very Low Income Households and
Lower Income Households throughout the Required Covenant Period, as more particularly set forth
in the Agency Developer CC&Rs.
5.2.3 Selection of Tenants. Developer shall be responsible for the selection of
tenants for the Required Affordable Units in compliance with the criteria set forth in Section 5.3 of
this Agreement. To the greatest extent legally allowable, preference will be afforded residents of the
City and their relatives.
5.2.4 Income of Tenants. Each tenant shall be a Very Low Income Household, a
Lower Income Household or a Moderate Income Household which meets the eligibility requirements
established for the correspond Required Affordable Unit, and Developer shall obtain ,a certification
from each tenant renting or leasing each housing unit which substantiates such fact. Developer shall
verify the income certification of each tenant as set forth in Section 5.3 hereof. Prior to the first
rental of a Unit, and in addition upon request therefor by Agency, the Developer shall submit to
Agency or its designee, at Developer's expense, a completed income computation and certification
fonn, in a fonn to be provided by Agency.
27
DOCSOC\881 80Svl OIJ.2707 .0007
5.2.5 Determination of Affordable Rent for the HousinS! Units. Each Required
Affordable Unit shall be rented at an "Affordable Rent" to be established as provided herein:
(a) The maximum monthly rental amount for the Required Affordable
Units to be rented to Very Low Income Households shall be established at one-twelfth (1112) of
thirty percent (30%) of fifty percent (50%) of Median Income for the Area for a household of a size
appropriate to the housing unit, or, if lower, the maximum rent for such unit as detennined under the
Regulatory Agreement.
(b) The maximum monthly rental amount for the Required Affordable
Units, if any, to be rented to Lower Income Households shall be established at one-twelfth (1112) of
thirty percent (30%) of sixty percent (60%) of Median Income for the Area for a household of a size
appropriate to the housing unit, or, if lower, the maximum rent for such unit as detennined under the
Regulatory Agreement.
(c) The maximum monthly rental amount for the Required Affordable
Units, if any, to be rented to Moderate Income Households shall be established at (i) the greater of
one-twelfth (1I12th) of thirty percent (30%) of one hundred ten percent (110%) of Median Income
for the Area for a household of a size appropriate to the housing unit or one twelfth (1I12th) of thirty
percent of the household's income, or, iflower: (ii) the maximum rent for such unit as detennined
under the Regulatory Agreement.
"Household size appropriate to the unit," for the purpose of the calculation of
rent herein (and without regard to actual occupancy), shall mean two persons for each one bedroom
unit and three persons for each two bedroom unit; provided that the maximum monthly rental amount
of the Required Affordable Units shall be adjusted annually by the fonnula set forth above upon the
promulgation of revised figures concerning Median Income for the Area by regulation of the
California Department of Housing and Community Development ("HCD"). Actual rent charged may
be less than such maximum rent.
Notwithstanding the foregoing portion of this Section 5.2.5, the Developer
agrees that rents shall be limited to the Prescribed Rent Levels. Development acknowledges that
such Prescribed Rent Levels will further diminish rents from the Development.
5.2.6 Relationshio to Tax Credit Requirements. Notwithstanding any other
provisions of this Agreement, to the extent that the regulatory agreement executed by the Developer
as a requirement of the reservation of tax credits (the "Tax Credit Regulatory Agreement") is more
restrictive with respect to the requirements applicable to tenant selection, tenant income levels and
unit rent levels than as provided in this Agreement and the Agency Developer CC&Rs, the Tax
Credit Regulatory Agreement shall control and the Developer's compliance therewith shall not be a
default hereunder;
5.2.7 Senior HousinS!. All of the Units shall be occupied by Seniors, consistent
with all applicable requirements as set forth in the Fair Housing Act, 42 U.S.C. ~ 3601, et seq., and
24 C.F.R. ~ 100.300 et seq., and Sections 51.3 and 51.4 of the California Civil Code, as applicable.
28
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,-------..-.,----,--.------- ^-_._~ --_.--
5.3 Verifications.
5.3.1 Income Verification. Developer shall verify the income of each proposed
and existing tenant of the Required Affordable Units.
5.3.2 Annual ReBorts. Following the issuance of the Certificate of Completion,
and on or before March 15 of each Operating Year, Developer, at its expense, shall submit to Agency
or its designee the reports required pursuant to Health and Safety Code Section 33418, as the same
may be amended from time to time, with each such report to be in the form prescribed by Agency.
Each annual report shall cover the immediately preceding fiscal year.
The Developer shall maintain on file each tenant's executed lease and Income
Verification and rental records for the Required Affordable Units. The Developer shall maintain
complete and accurate records pertaining to the Required Affordable Units and will permit any duly
authorized representative of the Agency to inspect the books and records of the Developer pertaining
to this Agreement and the Required Affordable Units. The Developer shall prepare and submit to the
Agency (or its designee) annually commencing March 15, 2004 and continuing throughout the
Required Covenant Period, a Certificate of Continuing Program Compliance. Such documentation
shall state for each Required Affordable Unit the unit size, the rental amount, the number of
occupants, and the income of the occupants and any other information which may be used to
determine compliance with the terms of this Agreement.
As part of its annual report, the Developer shall include a statement of amounts
payable by Developer under this Agreement supported by an Audited Financial Statement (prepared
by an independent accounting firm reasonably acceptable to the Agency) which sets forth
information in detail sufficient for adequate review by the Agency for the purposes of confirming
those amounts payable by the Developer to the Agency as well as showing the general financial
performance of the Affordable Housing Project ("Annual Financial Report"). Each Annual Financial
Report shall include a profit and loss statement showing Gross Revenues, Operating Expens.es, Debt
Service, Operating Reserve, Capital Replacement Reserve and Rental Receipts, all certified by the
Audited Financial Statement. In the event the amounts reported or paid deviate by three percent
(3%) or more from that amount determined to be owing upon review of the Developer's submittal,
Developer shall reimburse Agency for its cost to review (which may require engagement of auditors
and attorneys) and collect the amounts owing (including attorney fees); such amounts shall, until
paid, be added to the amount payable under the Agency Note.
5.4 Maintenance of Site. Developer agrees for itself and its successors in interest to the
Site, to maintain the improvements on the Site in conformity with the City Municipal Code and the
conditions set forth in the Agency Developer CC&Rs, and shall keep the Site free from any
accumulation of debris or waste materials. During such period, the Developer shall also maintain the
landscaping planted on the Site in a healthy condition.
5.5 Nondiscrimination Covenants. Developer covenants by and for itself and any
successors in interest 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 Site, nor
shall the Developer 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 Site or any
29
DOCS0C\881805v 1 0\22707 .0007
----...----.--------- -- -"~,--_.- ,-._-,-~..'~-
._,~---...,-..,..__..-
portion thereof. In addition, the Developer shall comply with all applicable Home Requirements.
The foregoing covenants shall run with the land.
Developer shall refrain from restricting the rental, sale or lease of the Site on the basis
of race, color, religion, sex, marital status, ancestry or national origin of any person. All such deeds,
leases or contracts shall contain or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
In deeds: "The grantee herein covenants by and for himself or herself, his or her
heirs, executors, administrators 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 or any person claiming under or through him or her, establish or pennit 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."
In leases: "The lessee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or through him or her,
and this lease is made and accepted upon and 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, transferring, use, occupancy, tenure, or enjoyment of the premises herein
leased nor shall the lessee himself or herself, or any person claiming under or through him or her,
establish or pennit any 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 premises herein leased."
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
premises, nor shall the transferee himself or herself or any person claiming under or through him or
her, establish or pennit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or
vendees of the premises."
5.6 Effect of Violation of the Terms and Provisions of this Ae:reement After
ComDletion of Construction. Agency is deemed the beneficiary of the tenns and provisions of this
Agreement and of the covenants running with the land, for and in its own right and for the purposes
of protecting the interests of the community and other parties, public or private, in whose favor and
for whose benefit this Agreement and the covenants running with the land have been provided,
without regard to whether Agency has been, remains or is an owner of any land or interest therein in
the Site or in the Project Area of the Redevelopment Plan. Agency shall have the right, if the
Agreement or any covenants in any agreement pursuant to this Agreement, including without
limitation the Agency Developer CC&Rs, are breached, to exercise all rights and remedies, and to
maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of
30
DOCSOC\88180Sv 1 0\22707 ,0007
._,,-.~--._---~-- .-----,- .-~--_._~,-,
such breaches to which it or any other beneficiaries of this Agreement and such covenants may be
entitled.
6. DEVELOPER'S GENERAL REPRESENTATIONS AND WARRANTIES.
As a material inducement to Agency to enter into this Agreement, Developer represents and
warrants to Agency that:
6.1 Formation. Qualification and ComDliance. Developer (a) is a California limited
partnership validly existing and in good standing under the laws of the State of California; (b) has all
requisite and the authority to conduct its business and own, purchase, improve and sell its properties.
Developer is in compliance in all material respects with all laws applicable to its business and has
obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all
filings, registrations and qualifications with any governmental agency that are necessary for the
transaction of its business; (c) Developer has and will in the future duly authorize, execute and
deliver this Agreement and any and all other agreements and documents required to be executed and
delivered by the Developer in order to carry out, give effect to, and consummate the transactions
contemplated by this Agreement; (d) Developer does not have any material contingent obligations or
any material contractual agreements which could materially adversely affect the ability of the
Developer to carry out its obligations hereunder; (e) There are no material pending or, so far as is
known to the Developer, threatened, legal proceedings to which the Developer is or may be made a
party or to which any of its property is or may become subject, which have not been fully disclosed
by the Developer to the Agency in this Agreemept which could materially adversely affect the ability
of the Developer to carry out its obligations hereunder; and (f) There is no action or proceeding
pending or, to the Developer's best knowledge, threatened, looking toward the dissolution or
liquidation of the Developer and there is no action or proceeding pending or, to the Developer's best
knowledge, threatened by or against the Developer which could affect the validity and enforceability
of the terms of this Agreement, or materially and adversely affect the ability of the Developer to
carry out its obligations hereunder.
Each of the foregoing items (a) to (f), inclusive, shall be deemed to be an ongoing
representation and warranty. The Developer shall advise the Agency in writing if there is any change
pertaining to any matters set forth or referenced in the foregoing items (a) to (f), inclusive.
6.2 Execution and Performance of Protect Documents. Developer has all requisite
authority to execute and perform its obligations under the Project Documents. The execution and
delivery by Developer of, and the performance by Developer of its obligations under, each Project
Document has been authorized by all necessary action and do not and will not violate any provision
of, or require any consent or approval not heretofore obtained under, any articles of incorporation,
by-laws or other governing document applicable to Developer.
6.3 Covenant Not to Transfer ExceDt in Conformity. Excepting for the rental of
individual dwelling units to occupants in the regular course of business (which rental activity shall
not be limited by this Section 6.3), the Developer shall not sell, lease, or otherwise transfer or convey
all or any part of the Site, or any interest therein, unless the Developer has first obtained the prior
written consent of the Executive Director, which consent may be granted or refused in the Executive
Director's sole and absolute discretion; except Agency shall upon receipt of written request therefor
consent to a sale by Developer of its interest in the Development to General Partner of Courtland-
Arroyo Grande, L.P., after the expiration of the tax credit period. Any sale, lease, transfer or
31
DOCS0C\881805vl 0\22707 .0007
.~ -_...._.~-_._--_.- __n.____
conveyance without such consent shall, at Agency's option, be void. A change in ownership of the
Developer resulting in the individuals executing this Agreement on behalf of Developer retaining less
than fifty-one percent (51%) ownership of all outstanding shares of Developer shall be deemed'to
violate this Section 6.3. In connection with the foregoing consent requirement, Developer
acknowledges that Agency relied upon Developer's particular expertise in entering into this
Agreement and continues to rely on such expertise to ensure the satisfactory completion of all of the
Improvements, and the marketing and rental of the Required Affordable Units to Very Low Income
Households and Lower Income Households to afford the community a long-term, quality affordable
housing resource.
7. DEFAULTS, REMEDIES, AND TERMINATION.
7.1 Default Remedies. Subject to the extensions of time set forth in Section 7.12 of this
Agreement, failure by either party to perform any action or covenant required by this Agreement
within the time periods provided herein following notice and failure to cure as described hereafter,
constitutes a "Default under this Agreement. A party claiming a Default shall give written notice of
Default to the other party specifying the Default. Except as otherwise expressly provided in this
Agreement, and without limiting or affecting rights of parties hereto to terminate this Agreement, the
claimant shall not institute any proceedings against any other party, and the other party shall not be in
Default if such party within thirty (30) days from receipt of such notice immediately, with due
diligence, commences to cure, correct or remedy the specified Default and shall complete such cure,
correction or remedy with diligence.
7.2 Institution of Leeal Actions. In addition to any other rights or remedies and subject
to the restrictions otherwise set forth in this Agreement, any party may institute an action at law or
equity to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any
Default, to recover damages for any Default, or to obtain any other remedy consistent with the
purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County
of San Luis Obispo, State of California, in an appropriate municipal court that county.
7.3 Termination bv the DeveloDer. In the event that: (i) the Developer is not in default
under this Agreement and Agency does not attempt to effect the Conveyance to the Developer
subject to the conditions and in the manner and condition and by the date provided in this
Agreement; or (ii) on or before the Tax Credit Deadline, the Developer fails to obtain a preliminary
reservation by TCAC for tax credits for the Development, or (iii) in the event of any default of
Agency prior to the Conveyance which is not cured within the time set forth in Section 7.1 hereof,
and any such failure is not cured within the applicable time period after written demand by the
Developer, then this Agreement may, at the option of the Developer, be tenninated by Notice thereof
to Agency. From the date of the Notice of termination of this Agreement by the Developer to
Agency and thereafter, this Agreement shall be deemed terminated and there shall be no further
rights or obligations among the parties.
32
DOCS0C\88180Sv 1 0\1.2707 .0007
_.__..~-_. --.-.----.., --.- --....---... _~_.._T..___
7.4 Termination bv A2encv. In the event that the Developer fails to obtain a
preliminary reservation for tax credits by TCAC by the Tax Credit Deadline or to provide by the
Closing Deadline (Bonds) evidence satisfactory to the Executive Director that tax credit proceeds
will be available for the Development prior to the time established in the Schedule of Performance
for the satisfaction of the Agency's Conditions Precedent:
7.4.1 Developer (or any successor in interest) assigns this Agreement or any rights
therein or in the Site in violation of this Agreement; or
7.4.2 Any Condition Precedent to Conveyance has not been fulfilled; or
7.4.3 Developer fails to execute (as lessee/covenantee) the Agency Developer
CC&Rs or the Memorandum of Agreement; or
7.4.4 Developer is otherwise in default of this Agreement and fails to cure such
default within the time set forth in Section 7.1 hereof;
then this Agreement and any rights of the Developer or any assignee or transferee
with respect to or arising out of the Agreement or the Site, shall, at the option of Agency, be
tenninated by Agency by Notice thereof to the Developer. From the date of the Notice of tennination
of this Agreement by Agency to the Developer and thereafter this Agreement shall be deemed
terminated and there shall be no further rights or obligations among the parties, except that Agency
may pursue any remedies it has hereunder.
7.5 Acceptance of Service of Process. In the event that any legal action is commenced
against the Agency, service of process on the Agency shall be made by personal service upon the
Executive Director or in such other manner as may be provided by law. In the event that any legal
action is commenced against the Developer, service of process on the Developer shall be made in
such manner as may be provided by law and shall be effective whether served inside or outside of
California.
7.6 Ri2hts and Remedies Are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the parties are cumulative, and the exercise by a party of one
or more of such rights or remedies shall not preclude the exercise by it, at the same or different times,
of any other rights or remedies for the same default or any other default by another party.
7.7 Inaction Not a Waiver of Default. Any failures or delays by either party in
asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default
or of any such rights or remedies, or deprive either such party of its right to institute and maintain
any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights
or remedies.
7.8 Applicable Law. The laws of the State of California shall govern the interpretation
and enforcement of this Agreement.
7.9 IIntentionally Omitted}
7.10 Enforced Delav: Extension of Times of Performance. In addition to specific
provisions of this Agreement, performance by any party hereunder shall not be deemed to be in
Default, and all performance and other dates specified in this Agreement shall be extended, where
33
DOCSOC\88180Sv 1 0\22707.0007
---'_._----,--------' ---.<.'"
delays or Defaults are due to: war; insuITection; riots; floods; earthquakes; fires; casualties; acts of
God; acts of the public enemy; acts or omissions of another party, or acts or failures to act of the City
or any other public or governmental agency or entity (excepting that acts or failures to act of Agency
or City shall not excuse perfonnance by Agency or City). Notwithstanding anything to the contrary
in this Agreement, an 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 notice by the
party claiming such extension is sent to the other party within thirty (30) days of the commencement
of the cause. Times of perfonnance under this Agreement may also be extended in writing by the
mutual agreement of Agency and Developer. The Agency Executive Director shall have the
authority to approve extensions on behalf of Agency to approve extensions of time not to exceed a
cumulative total of one hundred eighty (180) days. Notwithstanding any provision of this Agreement
to the contrary, the inability to obtain a preliminary reservation by TCAC or the failure to conclude
the marketing of tax credits, for any reason, or the lack of funding to complete the Development or
failure or refusal by the Owner to convey the Property or to provide the Owner/Agency Indemnity or
if the Due Diligence to Site is not accomplished to the reasonable satisfaction of Agency shall not
constitute grounds of enforced delay pursuant to this Section 7.10.
7.11 Limitation Doon Transfer. The qualifications and identity of the Developer are of
particular concern to Agency. It is because of those qualifications and identity that Agency has
entered into this Agreement with the Developer. For the period commencing upon the date of this
Agreement and until the end of the Required Covenant Period, no voluntary or involuntary successor
in interest of the Developer shall acquire any rights or powers under this Agreement, nor shall the
Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing
or lease of the whole or any part of the Site or the Development thereon (excepting the rental Lease
of Units to Occupants) without prior written approval of Agency, except as expressly set forth herein.
7.11.1 Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, the Agency shall not unreasonably withhold its approval of an assignment
of this Agreement or conveyance of the interest in Site, or any part thereof, in connection with any of,
the following:
(a) Any transfers to an entity or entities in which the Developer retains a
minimum of fifty-one percent (51 %) of the ownership or beneficial interest and retains management
and control of the transferee entity or entities.
(b) The conveyance or dedication of any portion of the Site to the City or
other appropriate governmental agency, or the granting of easements or pennits to facilitate
constmction of the Development.
In the event of a proposed assignment by Developer under subparagraphs 7.11.1 (a)
through 7.11.1(b), inclusive, above, Developer agrees that at least thirty (30) days prior to such
assignment it shall give written notice to Agency including a request for approval of such assignment
and satisfactory evidence that the assignee has assumed jointly with Developer the Obligations of
this Agreement.
7.11.2 Aeencv Consideration of Reauested Transfer. Agency agrees that it will
consider in good faith a request made pursuant to this Section 7.11 after the achievement of
occupancy of ninety percent (90%) or more of the Housing Units in confonnity with this Agreement
following the issuance by Agency of a Certificate of Completion for the last building to be
34
DOCSOC\88180Svl 0\22707 .0007
. - ---~- - -- ~-------_.--~-,,--~_.
constructed as part of the Improvements, provided the Developer delivers written notice to Agency
requesting such approval and provided further that the Tax Credit Regulatory Agreement and the
Agency Developer CC&Rs remain in full force and effect. Such notice shall be accompanied by
sufficient evidence regarding the proposed assignee's or purchaser's development and/or operational
qualifications and experience, its financial commitments and resources, and the financial tenns of
such assignment (including the consideration proposed to flow to the Developer or Related Entity
and/or any of the Principals) in sufficient detail to enable Agency to evaluate the proposed assignee
or purchaser pursuant to the criteria set forth in this Section 7.11, and as reasonably detennined by
Agency. Notwithstanding the foregoing, the transfer of limited partnership interests to tax credit
investors shall not entitle'the Agency to receive compensation (in connection with such transfer to
tax credit investors). Agency shall evaluate each proposed transferee or assignee on the basis of its
development and/or qualifications and experience in the operation of facilities similar to the
Development, and its financial commitments and resources, and may reasonably disapprove any
proposed transferee or assignee, during the period for which this Section 7.11 applies, which Agency
reasonably detennines does not possess. sufficient qualifications. An assignment and assumption
agreement in fonn satisfactory to Agency's legal counsel shall also be required for all proposed
assignments. The Developer agrees and acknowledges that in connection with any such assignment
approved by the Agency pursuant to this Agreement, the Developer shall remain liable for
perfonnance pursuant to this Agreement for a period of five (5) years following such assignment;
provided that the five-year limitation shall not apply (and the ongoing liability of Developer shall not
be thereby limited) in connection with the transfer of limited partnership interests to tax credit
investors. Within thirty (30) days after the receipt of the Developer's written notice requesting
approval of an assignment or transfer pursuant to this Section 7.11, including assignments that do not
require Agency/Executive Director approval, Agency shall either approve or disapprove such
proposed assignment or shall respond in writing by stating what further infonnation, if any, Agency
reasonably requires in order to detennine the request complete and detennine whether or not to grant
the requested approval. Upon receipt of such a response, the Developer shall promptly furnish to
Agency such further infonnation as may be reasonably requested.
7.11.3 Successors and Assi2ns. All of the tenns, covenants and conditions of this
Agreement shall be binding upon the Developer and its pennitted successors arid assigns. Whenever
the term "Developer" is used in this Agreement, such tenn shall include any other pennitted
successors and assigns as herein provided.
7.11.4 Assi2nment bv A2encv. Agency may assign or transfer any of its rights or
obligations under this Agreement with the approval of the Developer, which approval shall not be
unreasonably withheld; provided, however, that Agency may assign or transfer any of its interests
hereunder to the City at any time without the consent of the Developer.
7.12 Non-Liabilitv of Omcials and Emolovees of A2encv. No member, official, officer
or employee of Agency or the City shall be personally liable to the Developer, or any successor in
interest, in the event of any Default or breach by Agency (or the City) or for any amount which may
become due to the Developer or its successors, or on any obligations under the terms of this
Agreement.
7.13 Relationshio Between A2encv and Develooer. It is hereby acknowledged that the
relationship among the Agency and Developer is not that of a partnership or joint venture and that
Agency and Developer shall not be deemed or construed for any purpose to be the agent of the other.
Accordingly, except as expressly provided in this Agreement, including the Attachments hereto,
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-----.-- ._-~-~- -~~ -- -~---~-~ ---"-<
neither the Agency nor the City shall have no rightst powerst duties or obligations with respect to the
developmentt operationt maintenance or management of the Development.
7.14 A2encv and City Aoorovals and Actions. Whenever a reference is made herein to
an action or approval to be undertaken by the AgencYt the Executive Director is authorized to act on
behalf of the Agency unless specifically provided otherwise or the law otherwise requires. When a
reference is made herein to an action or approval to be undertaken by the City the City Manager is
authorized to act on behalf of the City unless specifically provided otherwise or the law otheIWise
requires.
7.15 Real Estate Brokers. Agency and Developer each represent and warrant to each
other that no broker or finder is entitled to any commission or findert s fee in connection with this
transactiont and each agrees to defend and hold harmless the other from any claim to any such
commission or fee resulting ftom any action on its part.
7.16 Attornevs' Fees. In any action among the parties to interprett enforce, refonnt
modifyt rescindt or otheIWise in connection with any of the tenns or provisions of this Agreementt
the prevailing party in the action shall be entitledt in addition to any other relief to which it might be
entitledt reasonable costs and expenses includingt without limitationt litigation costs and reasonable
attorneys' fees.
8. MISCELLANEOUS
8.1 Obli2ations Unconditional and Indeoendent. Notwithstanding the existence at any
time of any obligation or liability of Agency to Developert or any other claim by Developer against
Agency, in connection with the Site or otherwiset Developer hereby waives any right it might
otheIWise have (a) to offset any such obligationt liability or claim against Developer's obligations
under this Agreement (including without limitation the attachments hereto)t or (b) to claim that the
existence of any such outstanding obligationt liability or claim excuses the nonperfonnance by
Developer of any of its obligations under the Project Documents.
8.2 Notices. All noticest demandst approvals and other communications provided for in
the Project Documents shall be in writing and be delivered to the appropriate party at its address as
follows:
If to Developer: Courtland-Arroyo Grandet L.P.
c/o Meta Housing Corporation
4100 West Alameda Avenuet Suite 205
Burbankt CA 91505
Telephone: (818) 559-2412
Telecopier: (818) 559-2449
If to Agency: Arroyo Grande Redevelopment Agency
214 East Branch Street
Arroyo Grandet CA 93421
Attn: Executive Director
36
DOCSOC\881805vl 0\22707 .()()()7
--"",_.,~._~---- ---_..- ~---'~--_.~-----~^--,-~~,-----......_.._----
with copy to: Stradling Y occa Carlson & Rauth
Attention: Mark J. Huebsch
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
Telephone: (949) 725-4167
Telecopier: (949) 725-4100
Addresses for notice may be changed from time to time by written notice to all other
parties. All communications shall be effective when actually received; provided, however, that
nonreceipt of any communication as the result of a change of address of which the sending party was
not notified or as the result of a refusal to accept delivery shall be deemed receipt of such
communication.
8.3 Survival of ReDresentations and Warranties. All representations and warranties in
the Project Documents shall survive the Conveyance and the rental of the Required Affordable Units
and have been or will be relied on by Agency notwithstanding any investigation made by Agency.
8.4 No Third Parties Benefited ExceDt for City. This Agreement is made for the
purpose of setting forth rights and obligations of Developer and Agency, and no other person (except
for the City) shall have any rights hereunder or by reason hereof. Except for the City, which shall be
deemed to be a third party beneficiary of this Agreement (including without limitation the
Attachments hereto), there shall be no third party beneficiaries of this Agreement.
-
8.5 Bindin2 Effect: Assi2nment of Obli2ations. This Agreement shall bind, and shall
inure to the benefit of, Developer and Agency and their respective successors and assigns. Developer
shall not assign any of its rights or obligations under any Project Document without the prior written
consent of the Executive Director, which consent may be withheld in the Executive Director's sole
and absolute discretion. Any such assignment without such consent shall, at Agency's option, be
void. In connection with the foregoing consent requirement, Developer acknowledges that Agency
relied upon Developer's particular expertise in entering this Agreement and continues to rely on such
expertise to ensure the satisfactory completion of the Improvements and the use of the Required
Affordable Units in confonnity with this Agreement.
8.6 Counteroarts. Provided that the written approval of the Executive Director is first
obtained, any Project Document may be executed in counterparts, all of which, taken together, shall
be deemed to be one and the same document.
8.7 Prior A2reements: Amendments: Consents. This Agreement (together with the
other Project Documents) contains the entire agreement between Agency and Developer with respect
to the Site, and all prior negotiations, understandings and agreements with respect to such matters,
including without limitation the Prior Agreement, are superseded by this Agreement and such other
Project Documents. No modification of any Project Document (including waivers of rights and
conditions) shall be effective unless in writing and signed by the party against whom enforcement of
such modification is sought, and then only in the specific instance and for the specific purpose given.
This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an
original. This Agreement includes pages 1 through 39 and Attachments 1 through 14, which
constitutes the entire understanding and agreement of the parties.
37
DOCSOC\881805vl 0\1.2707 .0007
-'---.""-'.--.,-.-.. ---.--..- -----
This Agreement integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements between the parties or their
predecessors in interest with respect to all or any part of the subject matter hereof.
All waivers of the provisions of this Agreement must be in writing by the appropriate
authorities of the Agency and the Developer, and all amendments hereto must be in writing by the
appropriate authorities of the Agency and the Developer.
8.8 Governin2 Law. All of the Project Documents shall be governed by, and construed
and enforced in accordance with, the laws of the State of California. Developer irrevocably and
unconditionally submits to the jurisdiction of the Superior Court of the State of California for the
County of San Luis Obispo or the United States District Court of the Central District of California, as
Agency may deem appropriate, or, if required, the Municipal Court of the State of California for the
County of San Luis Obispo, in connection with any legal action or proceeding arising out of or
relating to this Agreement or the other Project Documents. Assuming proper service of process,
Developer also waives any objection regarding personal or in rem jurisdiction or venue.
8.9 Severability of Provisions. No provision of any Project Document that is held to be
unenforceable or invalid shall affect the remaining provisions, and to this end all pro-visions of the
Project Documents are hereby declared to be severable.
8.10 Headin2s. Article and Section headings are included in the Project Documents for
convenience of reference only and shall not be used in construing the Project Documents.
8.11 Conflicts. In the event of any conflict between the provisions of this Agreement and
those of any other Project Document, this Agreement shall prevail; provided however that, with
respect to any matter addressed in both such documents, the fact that one document provides for
greater, lesser or different rights or obligations than the other shall not be deemed a conflict unless
the applicable provisions are inconsistent and could not be simultaneously enforced or performed.
8.12 Time of the Essence~ Time is of the essence of all of the Project Documents.
8.13 Conflict of Interest. No member, official or employee of Agency shall have any
direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement
which is prohibited by law.
8.14 Warranty A2ainst Payment of Consideration. Developer warrants that it has not
paid or given, and will not payor give, any third person any money or other consideration for
obtaining this Agreement.
8.15 Nonliabilitv of A2encv Officials and EmDlovees. No member, official or employee
of Agency shall be personally liable to Developer, or any successor in interest, in the event of any
default or breach by Agency or for any amount which may become due to Developer or successor, or
on any obligation under the terms of this Agreement.
38
DOCS0C\881805vl 0\22707 .0007
_ _______"_'"_~___"_h____,_ __,_.__ _ ~------ --- ---- ~,--,--------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on
the dates hereinafter respectively set forth.
DEVELOPER: .
COURTLAND-ARROYO GRANDE, L.P.
(a California limited partnership)
By: Foundation for Affordable Housing, Inc.
a California Corporation
(Its: General Partner)
By:
Thomas E. Willard
Its: President
By: MFPA, Inc.
a California Corporation
(Its: General Partner)
By:
Sean Clark
Its: Vice-President
AGENCY:
ARROYO GRANDE REDEVELOPMENT
AGENCY, a public body, corporate and politic
By:
Steven Adams, Executive Director
ATTEST:
Kelly Wetmore
Director of Administrative Services! Agency Secretary
39
D()CSCK)88180SvlO\22707.0007
^--------- -"-"-. - --- -----
ATTACHMENT NO.1
SITE MAP
Attachment No. 1
DOCSOC\881805v 1 0\22707 .()()()7
~----'------'----
ATTACHMENT NO.2
LEGAL DESCRIPTION OF THE SITE
Attachment No.2
DOCSOC\881805v 1 0\22707 .0007
_.,----- _.,._-~-- .'^-
ATTACHMENT NO.3
SCHEDULE OF PERFORMANCE
For the purposes of this Schedule of Performance, the "Date of Agreement" is December 9,
2003. The Executive Director may extend by not more than ninety (90) days the time under this
Schedule of Performance by which any obligation of Developer shall be performed.
1. Satisfaction of Conditions Precedent to Not later the Closing Deadline (Bonds).
Disbursement of Agency Disbursement
Amount. Developer shall satisfy the
Conditions Precedent to Disbursement of
Agency Disbursement Amount.
2. Recording. The Agency CC&Rs and On or before the Closing Deadline (Bonds).
Memorandum of Agreement are recorded.
3. TCAC Approval. The Developer shall Not later than the Date of Agreement.
have obtained a preliminary reservation of
tax credits by TCAC.
4. Commencement of Construction. The On or before September 30, 2004.
Developer shall have commenced
construction of the Improvements.
5. Completion of Construction. Developer Witbin fourteen {14} months after the earlier of
shall complete construction of the (i) the commencement of construction or (ii) the
Improvements. time established in this Schedule of Performance
for the commencement of construction.
6. Rental Units Occupied. Developer causes Within one hundred (100) days after the earlier of
the Required Affordable Units to be (i) completion of construction or (ii) the time
occupied using the Prescribed Rent Levels established for completion of construction in this
in conformity with the Agreement. Schedule of Performance.
Attachment No.3
Page 1 of 1
DOCS0C\88180Svl 0\1.2707 .0007
"_.M.~.'.__" -.---....-- -- ----...-.,-- ,~-",.,~
ATTACHMENT NO.4
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
TO: Arroyo Grande Redevelopment Agency
214 East Branch Street
Arroyo Grande, California 93421
Attention: Executive Director
The undersigned, , being duly authorized to execute this Certificate of
Continuing Program Compliance (this "Certificate") on behalf of Courtland-Arroyo Grande, L.P., a
California limited partnership (the "Developer"), hereby represents and warrants that:
1. He has read and is thoroughly familiar with the provisions of the Amended and
Restated Affordable Housing Agreement (the "AHA") by and between the Agency and the
Developer dated as of March 20, 2002, including without limitation the Agency Developer CC&Rs
and other attachments thereto. Capitalized terms used herein shall have the same meaning as that set
forth in the AHA; and
2. As of the date of this Certificate, the following number of completed residential units
at the Site: (i) are currently occupied by Very Low Income Households at Affordable Rent; (ii) are
currently occupied by Lower Income Households at Affordable Rent; (iii) are currently occupied by
Moderate Income Households at Affordable Rent, or (iv) are currently vacant and being held
available for occupancy by a Very Low Income Household, a Lower Income Household, or a
Moderate Income Household and have been so held continuously since the date a Very Low Income
Household, a Lower Income Household or Moderate Income Household vacated such unit:
Occupied at an Affordable Rent by:
Very Low Income Households (50%) # of Units, Nos.:
Lower Income Households (60%) # of Units, Nos.:
Occupied at Home Rent # of Units, Nos.:
Moderate Income Households (120%) # of Units, Nos.:
Vacant:
a. Held for occupancy by:
1. Very Low Income Households (50%) # of Units, Nos.:
11. Lower Income Households (60%) # of Units, Nos.:
111. Home Units # of Units, Nos.:
IV. Moderate Income Households (120%) # of Units, Nos.:
b. Last occupied by:
1. Very Low Income Households (50%) # of Units, Nos.:
11. Lower Income Households (60%) # of Units, Nos.:
111. Home Units # of Units, Nos.:
IV. Moderate Income Households (120%) # of Units, Nos.:
Attachment No.4
Page 1 of2
DOCSOC\881805vl 0\1.2707 .0007
- -~'>"-'---'-"---"^'----.- -------. ---'.'--- ~"..._+-----.-.+-.
,..-'" ~<"---,,".-.,,--..-
.
3. At no time since the date of filing of the last Certification of Continuing Program
Compliance have less than one hundred percent (100%) of the Required Affordable Units as
completed units in the Project been occupied by, or been last occupied, or have been available for
occupancy by Very Low Income Households, Lower Income Households or Moderate Income
Households at an Affordable Rent.
4. The Developer is not in default under the tenns of the Agreement, including without
limitation the attachments thereto (such as the Agency Developer CC&Rs).
COURTLAND-ARROYO GRANDE, L.P.
(a California limited partnership)
By: Foundation for Affordable Housing, Inc.
a California Corporation
(Its: General Partner)
By:
Thomas E. Willard
Its: President
By: MFPA, Inc.
a California Corporation
(Its: General Partner)
By:
Sean Clark
Its: Vice-President
(DEVELOPER)
Attachment No.4
Page 2 of2
DOCS0C\881805v I 0\22707 .0007
-,-..---------- ---------- ----- ,- ------,-------
ATTACHMENT NO.5
CALCULATION OF AFFORDABLE RENTS
San Luis Obispo County
Affordable Rent Worksheet
(2003 Income Figures)1
1. Income Eligibility
The first step in determining eligibility for an affordable housing program is determining
whether the family which will be purchasing or renting the housing unit meets the following income
standards applicable to San Luis Obispo County, based upon the size of the family:
Income 1 perso" 2 person 3 perso" 4 perso" 5 perso" 6 perso" 7 perso" 8 perso"
Level household hOlUlehold household hOlUleltold houseltold Itouseltold ItoNseltold ItolUleltold
Very lAw 520,200 $23,100 525,950 528,850 $31,150 $33,450 $35,750 $38,100
IAwe'; $24,240 $27,690 $31,170 $34,620 $37,380 $40,170 $42,930 $45,690
Met/ill" $40,400 $46,150 551,950 $57,700 $62,300 $66,950 $71,550 $76,150
Modertlte $48,500 $55,400 $62,350 $69,250 $74,800 $80,350 $85,850 $91,400
I Based on cUlTently effective median income of San Luis Obispo County, as set forth in
25 Cal. Code Regs. Section 6932, operative as of March 2003. These median income
numbers are revised annually.
2 Under the Agreement, the Income level for Lower Income Households shall be treated as
60% of Median Income.
, 2. Determining Affordable Rent
The rental housing, the second step in determining compliance with affordable housing
requirements is determining whether the total rent costs payable by the tenant are within allowable
amounts.
Attachment No.5
Page 1 of3
DOCS0C\881805v1 0\22707 .0007
_r.___...______ ---- -----~._~--- _..--~-,--.->'----
For Very Low Income Households:2
Units at 50% of Median Income:
. renting a 0 bedroom unit. monthly rent may not exceed $505.00
. renting a 1 bedroom unit. monthly rent may not exceed $576.88
. renting a 2 bedroom unit. monthly rent may not exceed $649.38
. renting a 3 bedroom unit. monthly rent may not exceed $721.25
. renting a 4 bedroom unit. monthly rent may not exceed $778.75
. renting a 5 bedroom unit. monthly rent may not exceed $836.88
2 Under Health and Safety Code Section 50053(b)(2). Affordable Rent for Very Low Income
Households is the product of30 percent times 50 percent of the area median income adjusted
for family size appropriate to the unit.
For Lower Income Households:3
. renting a 0 bedroom unit. monthly rent may not exceed $606.00
. renting a 1 bedroom unit. monthly rent may not exceed $692.25
. renting a 2 bedroom unit. monthly rent may not exceed $779.25
. renting a 3 bedroom unit. monthly rent may not exceed $865.50
. renting a 4 bedroom unit. monthly rent may not exceed $934.50
. renting a 5 bedroom unit. monthly rent may not exceed $1004.25
3 Affordable Rent for Lower Income Households is the product of 30 percent times 60 percent
of the area median income adjusted for family size appropriate to the unit. Health and Safety
Code Section SOOS3(b)(3).
In addition. for any Lower Income Household whose income falls within the following
guidelines. its optional for the Agency to require that affordable rent not exceed 30 percent of the
gross income of the household:4
. 1 person households whose income is between $24,240 and $32,300
. 2 person households whose income is between $27,690 and $36,950
. 3 person households whose income is between $31,170 and $41,550
. 4 person households whose income is between $34,620 and $46,150
. 5 person households whose income is between $37,380 and $49,850
. 6 person households whose income is between $40,170 and $53,550
. 7 person households whose income is between $42,930 and $57,250
. 8 person households whose income is between $45,690 and $60,950
4 Health and Safety Code Section 500S3(b)(3).
For Moderate Income Households:5
. renting a 0 bedroom unit. monthly rent may not exceed $1,111.00
. renting a 1 bedroom unit. monthly rent may not exceed $1,269.13
. renting a 2 bedroom unit. monthly rent may not exceed $1,428.63
Attachment No.5
Page 2 on
DOCSOC\881805v 1 0\1.2707 .0007
---_.,--
. renting a 3 bedroom unit, monthly rent may not exceed $1,586.75
. renting a 4 bedroom unit, monthly rent may not exceed $1,713.25
. renting a 5 bedroom unit, monthly rent may not exceed $1,841.13
In addition, for any Moderate Income Household whose income falls within the following
guidelines, it is optional for the agency to require that affordable rent not exceed 30 percent of the
gross income of the household:6
. 1 person households whose income is between $44,440 and $48,500
. 2 person households whose income is between $50,765 and $55,400
. 3 person households whose income is between $57,145 and $62,350
. 4 person households whose income is between $63,470 and $69,250
. 5 person households whose income is between $68,530 and $74,800
. 6 person households whose income is between $73,645 and $80,350
. 7 person households whose income is between $78,705 and $85,850
. 8 person households whose income is between $83,765 and $91,400
The Agency agrees to allow the computation of affordable rent for Moderate Income Households as
set forth in this paragraph.
s Affordable Rent for Moderate Income Households is the product of 30 percent times 110
percent of the area median income adjusted for family size appropriate to the unit or, if
greater, 30 percent times the household (withno adjustment for family size appropriate for
the unit). Health and Safety Code Section 50053(b)(4).
6 Health and Safety Code Section 50053(b)(4).
For purposes of determining Affordable Rent, "Rent" is an average of estimated housing
costs for the next twelve months. "Rent" includes the total of monthly payments for all of the
following: 7
. Use and occupancy of a housing unit and land and facilities associated therewith.
. Any separately charged fees or service charges assessed by the lessor which are
required of all tenants, other than security deposits.
. A reasonable allowance for utilities not included in the above costs, including
garbage collection, sewer, water, electricity, gas, and other heating, cooking, and
reftigeration fuels. Utilities does not include telephone service. Such an allowance
shall take into consideration the cost of an adequate level of service.
. Possessory interest taxes or other fees or charge assessed for use of the land and
facilities associated therewith by a public or private entity other than the lessor.
7 25 California Code of Regulations Section 6918.
Attachment No.5
Page 3 on
DOCS0C\881805vl 0\22707 .0007
-----~--, -------.
ATTACHMENT NO.6
REQUEST FOR NOTICE OF DEFAULT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Arroyo Grande Redevelopment Agency
214 East Branch Street
Arroyo Grande, California 93421
Attention: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
Exempt from recording fees pursuant to Government Code ~ 6103.
Request for Notice Under Section 2924b Civil Code
In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any
Notice of Default and a copy of any Notice of Sale under the Deed of Trust recorded as Instrument
No. - on , 200_, in Book , Page , Official Records of San Luis
Obispo County, California, and describing land therein as
See Exhibit A attached hereto
executed by , as Trustor, in which is named as
Beneficiary, and as Trustee, be mailed to ARROYO GRANDE
REDEVELOPMENT AGENCY, at 214 East Branch Street, Arroyo Grande, California 93421,
Attention: Executive Director.
NOTICE: A COpy OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE
WILL BE SENT ONLY TO THE ADDRESS CONTAINED THIS RECORDED
REQUEST. IF YOUR ADDRESS CHANGES, A REQUEST MUST BE
RECORDED.
Executive Director
Date
Attachment No.6
Page 1 of 1
DOCSOC\881805vl 0\22707 .0007
^."._~--<--,~_._-,._- --, -~ _~"___'___m "-~~-----_._----
ATTACHMENT NO.7
SCOPE OF DEVELOPMENT
I. GENERAL DESCRIPTION
The Site is specifically delineated on the Site Map and the Legal Description of the Site.
II. DEVELOPMENT
The Developer shall construct one hundred eight (108) housing units on the Site, together
with all on-site and off-site features described in this Scope of Development (as presented to the City
Council of the City on March 20, 2002), including without limitation landscaping and all off-sites
and improvements required under the City approvals for the Development, including zoning, general
plan, environmental clearance and all conditions of approval thereunder. All such improvements
collectively constitute the "Improvements."
The quality of construction shall be of a high level. The Improvements shall conform to the
approved plans on file with the Agency as of the Date of the Agreement as supplemented by the
Design Development Drawings (the "Approved Plans"), including all conditions and mitigation
measures ,under: Use Permit No. 01-014, Parcel Map No. 01-004, Development Code Amendment
Case No. 01-004, and Ordinance No. 531.
The Developer shall commence and complete the Improvements by the respective times
established therefor in the Schedule of Performance.
III. DEVELOPMENT STANDARDS
The Improvements shall conform to all applicable state laws and regulations and to local
zoning, applicable provisions of the Municipal Code of the City of AIToyo Grande (the "Municipal
Code") and the following development standards:
A. General Requirements:
1. Vehicular Access. The placement of vehicular driveways shall be
coordinated with the needs of proper street traffic flow as approved by the City. In the interest of
minimizing traffic congestion, the City will control the number and location of curb breaks for access
to the Site for off-street parking and truck loading. All access driveways shall require written
approval of the City staff.
2. Building Signs. Signs shall be limited in size, subdued and otherwise
designed to contribute positively to the environntent. Signs identifying the building use will be
permitted, but their height, size, location, color, lighting and design will be subject to City staff
approval, and signs must conform to the Municipal Code.
3. Screening. All outdoor storage of materials or equipment shall be enclosed
or screened to the extent and in the manner required by the City staff.
Attachment No. 7
Page 1 of2
DOCSOC\88180Svl 0\22707 .0007
....-,-,",--.---..----" _._--~ _._-~...
---_.----- ",--,,--, '-~'--~'-
4. Landscaping. The Developer shall provide and maintain landscaping within
the public rights-of-way and within setback area along all street frontages and conforming with the
plans as hereafter approved by the City.
Landscaping shall consist of trees, shrubs and installation of an automatic irrigation
system adequate to maintain such plant material. The type and size of trees to be planted, together
with a landscaping plan, shall be subject to the City staff approval prior to planting.
5. Utilities. All utilities on the Site provided to service the units rehabilitated or
reconstructed by the Developer shall be underground at Developer's expense.
6. Building Design. Buildings shall be constructed such that the Improvements
shall be of high architectural quality, and shall be effectively and aesthetically designed and in
conformance with City approvals.
B. Design Features:
The following design features are considered essential components to the
Improvements:
Handicapt>ed Units - Units are to be fully handicapped accessible in compliance with
State Housing Code - Title 24 requirements.
Senior Housing - The Units shall contain features especially adapted for Seniors.
Overall Design Ouality. Materials. Colors. Design Features - Quality of design is
important, materials and colors are to be approved by City.
Mobility/Agility - All facilities shall comply, to the extent feasible, with "New
Horizon Accessible, Adaptable Apartments for the Physically Disabled" published by the
State of California, Department of Housing and Community Development dated July 1989,
and shall comply with those portions of Title 24 of the California Code of Regulations that
have been adopted by the Department of Housing and Community Development (HCD)
relating to handicapped units, and the requirements of the federal Department of Housing and
Urban Development, Part VI, 24 C.F.R. Ch. 1, Vol. 56, No. 44, as published in the Federal
Register March 6, 1991.
IV. DEMOLITION AND SOILS
The Developer assumes all responsibility for surface and subsurface conditions at the Site,
and the suitability of the Site for the Improvements. The Developer has undertaken all investigation
of the Site as it shall deem necessary and has not received or relied upon any representations of the
Agency, the City, or their respective officers, agents and employees.
V. SPECIAL AMENITIES
The Developer shall undertake all improvements required by the City as a condition of
development of the Site, as more particularly provided in the City approvals given for the Site.
Attachment No. 7
Page 2 of2
DOCS0C\881805v 1 0\22707 .0007
-----_,'-----'"- _.--,
ATTACHMENT NO.8
CERTIFICATE OF COMPLETION
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
)
)
)
)
)
(Space Above for Recorder's Use Only)
This document is exempt trom the payment of a recording
fee pursuant to Government Code Section 27383.
CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (the "Certificate") is made by the ARROYO
GRANDE REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"),
in favor of COURTLAND-ARROYO GRANDE, L.P., a California limited partnership (the
"Developer"), as of the date set forth below.
RECITALS
A. Agency and the Developer have entered into that certain Amended and Restated
Affordable Housing Agreement (the "AHA") dated as of December 9, 2003 concerning the
redevelopment of certain real property situated in the City of Arroyo Grande, California, as more
fully described in Exhibit "A" attached hereto and made a part hereof (the "Site").
B. As referenced in Section 4.13 of the AHA, Agency is required to furnish the
Developer or its successors with a Certificate of Completion upon completion of construction of the
"Improvements" (as defined in Section 1.1 of the AHA), which Certificate is required to be in such
form as to permit it to be recorded in the Recorder's Office of San Luis Obispo County. This
Certificate is conclusive determination of satisfactory completion of the construction and
development required by the AHA.
C. Agency has conclusively determined that the construction and development of the
Development has been satisfactorily completed.
NOW, THEREFORE, Agency hereby certifies as follows:
1. Agency does hereby certify that the Improvements to be constructed by the
Developer has been fully and satisfactorily completed, in full conformance with the AHA.
2. This Certificate shall not constitute evidence of compliance with or satisfaction of
any obligation of Developer to any holder of a mortgage, or any insurer of a mortgage, securing
money loaned to finance construction work on the Site, or any part thereof.
Attachment No.8
Page 1 of2
rK>CSQ()881805vl0\22707.0007
------ ~--~- ------"~".
3. This Certificate shall not constitute evidence of Developer's compliance with those
covenants in the AHA that survive the issuance of this Certificate.
4. This Certificate is not a Notice of Completion as referred to in California Civil Code
Section 3093.
5. Nothing contained in this instrument shall modify in any other way any other
provisions of the AHA (including without limitation the attachments thereto).
IN WITNESS WHEREOF, Agency has executed this Certificate of Completion this _
day of ,200_.
ARROYO GRANDE REDEVELOPMENT
AGENCY, a public body, corporate and politic
By:
Steven Adams, Executive Director
ATTEST:
Kelly Wetmore, Agency Secretary
Attachment No.8
Page 2 of2
IX>CS0C\881805vl 0\22707 .0007
---"---'--""--- -~----._~- ,-
EXHIBIT "A" TO ATTACHMENT NO.8
LEGAL DESCRIPTION
[To Be Attached]
Exhibit "A" to Attachment No.8
Page 1 of 1
DOCS0C\881805vl 0\22707.0007
-'~--~'---'----,-,-~- - ---~---
~'------~-
ATTACHMENT NO.9
AGENCYDEVELOPERCC&RS
Recording Requested by: )
. )
When Recorded Return to and )
Mail Tax Statements to: )
)
Arroyo Grande Redevelopment Agency )
214 East Branch Street )
Arroyo Grande, California 93421 )
AUn: Executive Director )
)
(Space above for Recorder's Use.)
This document is exempt from the payment of a recording fee
pursuant to Government Code Section 6103.
By:
REGULATORY AGREEMENT
These Covenants, Conditions and Restrictions, herein sometimes referred to as these
"CC&Rs" or "Declaration" or "Regulatory Agreement" are made by the signatories hereto.
RECITALS
WHEREAS, each of the Arroyo Grande Redevelopment Agency, a public body, corporate
and politic ("Agency"), the City of Arroyo Grande, a municipal corporation ("City"), and
Courtland-Arroyo Grande, L.P., a California limited partnership ("Developer") is a party to this
Declaration. The Agency, the City and the Developer are sometimes collectively referred to herein
as the "Declarants."
WHEREAS, the Agency and the Developer have entered into that certain Amended and
Restated Affordable Housing Agreement dated as of December 9, 2003 (the "AHA") for the
improvement and development of certain real property described in Exhibit "A" (to which these
CC&Rs are attached) as the "Site," which AHA provides for the recordation of this Regulatory
Agreement. The AHA is incorporated herein by this reference and any capitalized tenn not defined
herein shall have the meaning established therefor in the AHA. The City is a third party beneficiary
of the AHA.
WHEREAS, this Regulatory Agreement establishes a plan for the improvement,
development and maintenance ofthe Site, for the benefit of the Project Area, as well as the rest of the
City.
Attachment No.9
Page 1 of 13
DOCSOC\881805vl OIJ.2707 .0007
~-----~-'--"-'---~" '-'--~. ----~--
WHEREAS, it is contemplated under the AHA that, as of the recordation of this Regulatory
Agreement, the Developer has received the conveyance of the "Site" as described in the legal
description attached hereto as Exhibit "A" and incorporated herein by this reference.
WHEREAS, the AHA sets forth certain restrictive covenants applicable to the Site,
particularly the use of the Site for the provision of rental housing units available to Very Low Income
Households and Lower Income Households at Affordable Rents as those tenns are defined therein.
WHEREAS, Agency, City, and Developer wish to adopt this Regulatory Agreement to
further govern the use of the Site in conjunction and along with the AHA and to ensure' that the
Agency achieves credit for production of affordable housing units pursuant to Section 33413 of the
California Health and Safety Code.
NOW, THEREFORE, the Agency and the City each of the Developer (as owner of real
property interests described hereinabove), in the City, declares that the Site shall be held, transferred,
encumbered, used, sold, conveyed, leased and occupied subject to the Covenants, Conditions and
Restrictions hereinafter set forth expressly and exclusively for the use and benefit of said property,
and the Agency and the City. Each and all of the restrictions, limitations, conditions, covenants,
liens, reservations and charges herein contained shall run with the land and be recorded on the
property title and shall be binding on Declarants, their grantees, successors, heirs, executors,
administrators, devisees or assigns, and all subsequent owner of all or any part of the Site.
ARTICLE I
DEFINITIONS
The definitions provided herein shall be applicable to this Declaration and also to any
amendment or supplemental Declaration (unless the context implicitly or explicitly shall prohibit),
recorded against the Site pursuant to the provision of this Declaration.
Section 1. "Affordable Housing Pr01ect" means an affordable housing project operated
in confonnity with this Regulatory Agreement throughout the Required CoveJ;lant Period.
Section 2. "Affordable Rent" has the meaning set forth in Health and Safety Code
Section 50053. For a Very Low Income Household, Affordable Rent means a monthly rent which
does not exceed one twelfth (l/12th) of thirty percent (30%) of fifty percent (50%) of the Median
Income for the Area for a household size appropriate to the unit. For a Lower Income Household,
Affordable Rent means a monthly rent which does not exceed one-twelfth (l/12th) of thirty percent
(30%) of sixty percent (60%) of the Median Income for the Area. For a Moderate Income
Household, Affordable Rent means a monthly rent which does not exceed (i) the greater of
one-twelfth (l/12th) of thirty percent (30%) of one hundred ten percent (110%) of the Median Income
for the Area calculated based upon "Household size appropriate to the unit" (as described below) or
(ii) one-twelfth of thirty percent (30%) of the income of the corresponding household or (ii) that
amount, if any, established as a limit for Moderate Income Units in connection with the reservation
of tax credits for the Rental Project. "Household size appropriate to the unit," as used herein, shall
mean two persons for each one-bedroom unit (if any), and three persons for each two bedroom unit.
The maximum monthly rental amount of the units shall be adjusted annually by the fonnula set forth
above upon the promulgation of revised median income figures for San Luis Obispo County by
regulation of the California Department of Housing and Community Development. Actual rent
charged may be less than such maximum rent.
Attachment No.9
Page 2 of 14
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Section 3. "Agency" means the Arroyo Grande Redevelopment Agency and its
successors in interest.
Section 4 "Approved Housing Project" means all improvements as provided to be
developed by Developer under the AHA. The Approved Housing Project must be completed in strict
confonnity with all specifications contained in or referred to in the AHA.
Section 4. "Area" means the area defined by HUD which includes and consists primarily
of San Luis Obispo County.
Section 5. "Calculation of Affordable Rents" means the worksheet substantially in the
fonn of Attachment No.5 to the AHA.
Section 6. "Certificate" or "Certification" is defined in Section 3(a).
Section 7. "City" means and refers to the City of Arroyo Grande, a municipal
corporation.
Section 8. "City Code" means and r~fers to the City of Arroyo Grande Municipal Code
as revised from time to time.
Section 9. "Common Areas" means all areas on the Site that are open or accessible to all
tenants of the Site (such as grounds, but excluding buildings).
Section 10. "Gross Income" means all payments from all sources received by a person
(together with the gross income of all persons of the age of 18 years or older who intend to reside
with such person in one residential unit) whether in cash or in kind as calculated pursuant to the
Department of Housing and Urban Development ("HUD") Regulations (24 C.F.R. ~ 813) in effect as
of the Date of Agreement.
Section 11. "Lower Income Household" means a household earning not greater than sixty
percent (60%) of median income for the Area.
Section 12. "Low Income Unit" or "Lower Income Unit" means a Unit occupied at
Affordable Rent by a Low Income (or Lower Income) Household.
Section 13. "Median Income for the Area" means the median income for the Area as most
recently detennined by the Secretary of Housing and Urban Development under Section 8 of the
United States Housing Act of 1937, as amended, or, if programs under Section 8 are terminated,
Median Income for the Area detennined under the method used by the Secretary prior to such
tennination.
Section 14. "Moderate Income Household" means a household earning not greater than
one hundred twenty percent (120%) of median income for the Area, as established under Health and
Safety Code Section 50093.
Section 15. "Moderate Income Unit" means a unit occupied at Affordable Rent by a
Moderate Income Household.
Attachment No.9
Page 3 of 14
DOCSOC\881805vl C1'Il2707 .0007
~-,-~.,-,_._-".,-- ----,- ------ -.-.--.-.----
Section 16. "Prescribed Rent Levels" means rent that is Affordable Rent for households
at the following income levels: (i) twenty (20) one-bedroom Units shall be Very Low Income Units;
(ii) four (4) two-bedroom Units shall be Very Low Income Units; (iii) twenty-two (22) one bedroom
Units shall be Low Income Units; (iv) six (6) two-bedroom Units shall be Low Income Units;
(v) forty-six (46) one bedroom Units shall be Moderate Income Units; and (vi) nine (9) two-bedroom
Units shall be Moderate Income Units.
Section 17. "Regulatory Agreement" means this Regulatory Agreement and any
amendments, modifications or supplements which may also be referred to herein as these "CC&Rs"
or this "Declaration."
Section 18. "Rental Project" means the one hundred eight (108) unit residential rental
development on the Site.
Section 19. "Required Affordable Unit" means a dwelling unit in the Rental Project, as
rehabilitated or reconstructed under the AHA, and available to, occupied by, or held vacant for
occupancy only by tenants qualifying as Very Low Income Households, Lower Income Households
or Moderate Income Households and rented at Affordable Rent conforming to the Prescribed Rent
Levels.
Section 20. "Required Covenant Period" means the period commencing on the date this
Regulatory Agreement is recorded and ending sixty (60) years thereafter.
Section 21. "Seniors" means those persons meeting the qualifications as set forth in the
Fair Housing Act, 42 U.S.c. ~ 3601, et seq., and 24 C.F.R. ~ 100.300, et seq., and Sections 51.3
and 51.4 of the California Civil Code, as applicable. At least one occupant for each Unit shall be
fifty-five (55) years or older and, in addition, to the greatest extent permitted by law, all occupants
shall be persons 55 years of age or older.
Section 22. "Site" means all of the real property and appurtenances as described above,
including all structures and other improvements thereon, and those hereafter constructed.
Section 23. "Unit" means a dwelling unit on the Rental Project.
Section 24. "Very Low Income Households" means Very Low Income Households
whose Adjusted Income does not exceed fifty percent (50%) of Median Income for the Area as
determined by the United States Department of Housing and Urban Development trom time to time
and as set forth in Health and Safety Code Section 50105.
Section 25. "Very Low Income Unit" means a Unit occupied at Affordable Rent by a
Very Low Income Household.
ARTICLE II
LAND USE RESTRICTIONS: IMPROVEMENTS
Section 1. Uses. The Developer shall develop the Approved Housing Project on the Site
in conformity with the AHA. Thereafter, the Site shall be operated as an Affordable Housing Project
and devoted only to the uses specified in the AHA for the periods of time specified herein. All uses
conducted on the Site, including, without limitation, all activities undertaken by the Developer
Attachment No.9
Page 4 of 14
DOCS0C\881805vl 0\22707 .0007
~-'-,----, ------, --
'~-_._--'~~--"-
pursuant to the AHA, shall conform to all applicable provisions of the Arroyo Grande Municipal
Code and the City Approvals.
The Site shall be used, maintained and operated in accordance with the AHA and this
Regulatory Agreement for the Required Covenant Period. None of the units in the Rental Project
shall at any time be utilized on a transient basis nor shall the Rental Project or any portion thereof
ever be used as a hotel, motel, dormitory, ftatemity or sorority house, rooming house, hospital,
nursing home, sanitarium, rest home or trailer court or park. No part of the Site, from the date the
Developer acquired its interest in the Site, has been or will at any time be owned or used as a
cooperative housing corporation or a community apartment project or a stock cooperative.
Section 2. Affordable Housing.
Number of Units. The Developer shall devote not less than one hundred percent
(100%) of the units in the Rental Project as Units available to and rented by Seniors. In addition,
throughout the Required Covenant Period, not less than one hundred seven (107) of the Units shall be
rented at "Prescribed Rent Levels." "Prescribed Rent Levels" means rent that is Affordable Rent for
households at the following income levels: (i) twenty (20) one-bedroom Units shall be Very Low
Income Units; (ii) four (4) two-bedroom Units shall be Very Low Income Units; (iii) twenty-two (22)
one bedroom Units shall be Low Income Units; (iv) six (6) two-bedroom Units shall be Low Income
Units; (v) forty-six (46) one bedroom Units shall be Moderate Income Units; and (vi) nine (9) two-
bedroom Units will be Moderate Income Units. Required Affordable Unites shall be continuously
occupied by or held available for occupancy by Very Low Income Households or, if applicable,
Lower Income Households or Moderate Income Households at an Affordable Rent. All Affordable
Units shall be rented at Affordable Rent. For this purpose, a tenant who qualifies as a Very Low
Income Household (or a Lower Income Household) at the time he or she first occupies an Affordable
Unit shall be deemed to continue to be so qualified until such time as a recertification of such
individual's or family's income in accordance with Section 3 below demonstrates that such
individual or family no longer qualifies as a Very Low Income Household (or a Lower Income
Household or Moderate Income Household). Moreover, a unit previously occupied by a Very Low
Income Household (or a Lower Income Household or Moderate Income Household), and then
vacated shall be considered occupied by such Very Low Income Household (or a Lower Income
Household or Moderate Income Household) until reoccupied, other than for a temporary period, at
which time the character of the unit shall be redetermined. In no event shall such temporary period
exceed thirty-one (31) days.
At such time as a tenant ceases to qualify as a Very Low Income Household (or a
Lower Income Household or Moderate Income Household), the unit occupied by such tenant shall
cease to be a Very Low Income Unit (or a Lower Income Unit or a Moderate Income Unit). The
Developer shall replace each such Very Low Income Unit (or a Lower Income Unit or a Moderate
Income Unit) by designating the next available unit and any necessary units thereafter as a V cry Low
Income Unit (or a Lower Income Unit or a Moderate Income Unit). For purposes of this Agreement,
such designated unit will be considered a Very Low Income Unit (or a Lower Income Unit or a
Moderate Income Unit) if it is held vacant and available for occupancy by a Very Low Income
Household (or a Lower Income Household or a Moderate Income Household), and, upon occupancy,
the income eligibility of the tenant as a Very Low Income Household (or a Lower Income Household
or a Moderate Income Household) is verified and the unit is rented at Affordable Rent.
Attachment No.9
Page 5 of 14
DOCSOC\881805vl 0\22707 .0007
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In the event a household's income initially complies with the corresponding income
restriction (for a Very Low Income Household, a Lower Income Household or Moderate Income
Household, whichever is applicable) but the income of such household increases, such increase shall
not be deemed to result in a violation of the restrictions of this Regulatory Agreement concerning
limitations upon income of occupants, provided that the occupancy by such household is for a
reasonable time of not to exceed one year (measured from the time the income of the household
ceases to qualify at the designated affordability level). The Developer shall include in its rental
agreements provisions which implement this requirement and limitation, and the Developer shall
expressly infonn prospective renters as to this limitation prior to the commencement of a tenancy.
Duration of Affordability Requirements. The Required Affordable Units shall be
available to and occupied by Very Low Income Households or, within the limitations set forth above,
Lower Income Households and Moderate Income Households, at Affordable Rent throughout the
Required Covenant Period. All tenants residing in the Affordable Units during the last two (2) years
of the Required Covenant Period shall be given notice by the Developer at least once every six (6)
months prior to the expiration date of this requirement, that the rent payable on the Affordable Unit
may be raised to a market rate rent at the end of the Required Covenant Period.
Selection of Tenants. As specified hereinbelow, Developer shall demonstrate to the
Agency that the proposed tenants of each of the Required Affordable Units constitutes a Very Low
Income Household or, within the limitations set forth above, a Lower Income Household or
Moderate Income Household.
Prior to the rental or lease of an Required Affordable Unit to a tenant, and as set forth
in this Section 2 of Article II of this Declaration, the Developer shall require the tenant to execute a
written lease and to complete an Income Verification certifying that the tenant(s) occupying the
Required Affordable Unit is/are a Very Low Income Household or, if applicable, a Lower Income
Household or Moderate Income Household and meet(s) the eligibility requirements established for
the Required Affordable Unit. The Developer shall verify the income of the tenant(s).
The Developer shall accept as tenants on the same basis as all other prospective
tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing
program under Section 8 of the United States Housing Act of 1937, or its successor. The Developer
shall not apply selection criteria to Section 8 certificate holders which are more burdensome than
criteria applied to any other prospective tenants.
Determination of Affordable Rent for the Affordable Units. The Affordable Units
shall be rented or leased at Affordable Rent. As of the approval of the AHA, Affordable Rent is
calculated in accordance with the Affordable Rent Worksheet. The maximum monthly rental for the
Affordable Unit shall be adjusted annually as pennitted by Section 50053 of the California Health
and Safety Code based on the annual adjustment to the Median Income for the Area established
pursuant to Section 50093 of the California Health and Safety Code, as more particularly set forth in
the Affordable Rent Worksheet.
Attachment No.9
Page 6 of 14
DOCSOC\881805vl 0\22707 .0007
- ~-----..--_.-..."-----,-----
THE DEVELOPER UNDERSTANDS AND KNOWINGLY AGREES THAT THE
MAXIMUM RENTAL FOR THE AFFORDABLE UNITS ESTABLISHED BY THE AHA, THIS
REGULATORY AGREEMENT IS SUBSTANTIALLY BELOW THE FAIR MARKET RENT
FOR THE AFFORDABLE UNITS.
Developer Initials:
Section 3. Developer Verification and Program Compliance.
Income Verification and Certification. The Developer will obtain and maintain on
file an Income Verification from each tenant, dated immediately prior to the initial occupancy of
such tenant in the Rental Project.
On July 31, 2003 and annually thereafter, the Developer shall file with the Agency or
its designee a Certificate, containing all infonnation required pursuant to Health and Safety Code
Section 33418 and containing such infonnation as the Agency additionally requires pursuant to the
Home Regulations, in a fonn prescribed by the Agency. Each Certificate shall cover the immediately
preceding fiscal year.
Reporting Amounts. Agency is required by Section 33418 of the California Health
and Safety Code to require Developer to monitor the Affordable Units and submit the annual reports
required by Section 3 of Article II of this Declaration. The Agency relies upon the infonnation
contained in such reports to satisfy its own reporting requirements pursuant to Sections 33080 and
33080.1 of the California Health and Safety Code. In the event the Developer fails to submit to the
Agency or its designee the Certification as required by Section 3(a), the Developer shall be in
noncompliance with this Regulatory Agreement. In the event the Developer remains in
noncompliance for thirty (30) days following receipt of written notice from the Agency of such
noncompliance under Sections 3(a) and 3(b) of Article II hereinabove, then the Developer shall,
without further notice or opportunity to cure, pay to the Agency Two Hundred Fifty Dollars
($250.00) per Required Affordable Unit for each year Developer fails to submit a Certificate
covering each and every housing unit on the Site.
Section 4. Nondiscrimination. The Developer shall refrain from restricting the rental,
sale or lease of the Site, or any portion thereof, on the basis of race, color, creed, religion, sex,
marital status, national origin or ancestry of any person. All such deeds, leases or contracts shall
contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(1) In deeds: "The grantee herein covenants by and for himself or herself, his or
her heirs, executors, administrators 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 himself or herself or any person claiming under or through him or her, establish or pennit
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."
Attachment No.9
Page 7 of 14
DOCS0C\88180Sv 1 0\22707 .0007
-'----~-.-'.'---'--~.-- -- - ----~--,-.--- ,--~-
....,... ....,-"'_..,,"'~......_.,-
(2) In leases: "The lessee herein covenants by and for himself or herself, his or
her heirs, executors, administrators and assigns, and all persons claiming under or through him or
her, and this lease is made and accepted upon and subject to the following conditions:
"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, ancestry or national origin in
the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein
leased nor shall the lessee himself or herself, or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or
vendees in the premises herein leased."
(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, ancestry or
national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
premises, nor shall the transferee himself or herself or any person claiming under or through him or
her, establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the premises."
The covenants established in this Declaration shall, without regard to technical
classification and designation, be binding for the benefit and in favor of the Agency, its successors
and assigns, the City and any successor in interest to the Site, together with any property acquired by
the Developer pursuant to this Agreement, or any part thereof. The covenants against discrimination
as set forth in this Section I of Article II shall remain in effect in perpetuity.
Section 5. Keeping of Animals. No animals of any kind shall be raised, bred or kept on
the Site, except that domesticated dogs, cats or other household pets may be kept by the tenants in the
Rental Project at the discretion of Developer and subject to compliance with all laws. However, no
animal shall be kept, bred or maintained for any commercial purpose or for fighting purposes.
Nothing permitted herein shall derogate in any way the right of the Developer to further restrict
keeping of pets.
Section 6. Parking of Vehicles. The Developer shall not permit the parking, storing or
keeping of any vehicle except wholly within the parking areas designated for the Required
Affordable Units. The Developer shall not permit the parking, storing or keeping of any large
commercial type vehicle (dump truck, cement mixer truck, oil or gas truck, etc.), or any recreational
vehicle over twenty (20) feet in length (camper unit, motor home, trailer, mobile home or other
similar vehicle), boats over twenty (20) feet in length, or any vehicle other than a private passenger
vehicle, upon any portion of the Common Areas, including parking spaces. For purposes of this
Section, a pickup truck with a pickup bed mounted camper shall be considered a private passenger
vehicle; provided however, that no such vehicle shall be used for residential purposes while parked
on the premises.
The Developer shall not permit major repairs or major restorations of any motor vehicle,
boat, trailer, aircraft or other vehicle to be conducted upon any portion of the Common Area,
including the parking areas, except for emergency repairs thereto and then only to the extent
necessary to enable movement of the vehicle to a proper repair facility. No inoperable vehicle shall
be stored or kept in the Common Area. The Developer shall give the vehicle owner not less than
Attachment No.9
Page 8 of 14
DOCS0C\881805vl 0\22707 .0007
.-. - ,,_.. -..---. -~._-_.^~".'_._---- -^_...,~, - ---
.... .'.~---'."-,"",",."."-",,~.-
four (4) days, nor more than seven (7) days notice and an opportunity to remove any vehicle parked,
stored or kept in violation of the provisions of this Declaration. Notice shall consist minimally of a
reasonably diligent attempt to personally notify the vehicle owner or alternatively leaving written
notice on the subject vehicle. After due notice and opportunity have been given to the vehicle owner,
the Developer shall have the right to remove, at the vehicle owner's expense, any vehicle parked,
stored or kept in violation of the provisions of this Declaration.
Section 7. Maximum Occupancies. No persons shall be pennitted to occupy any
Apartment within the Rental Project in excess of applicable limit of maximum occupancy set by the
Arroyo Grande Municipal Code and the laws of the State of California.
Section 8. Signs Required. "No loitering" signs will be posted at each building and
enforced by the owner(s). "illegally parked vehicles will be towed" signs in compliance with
California Vehicle Code requirements will be posted and enforced by the Developer.
Section 9. Fences and Electronic Installations. The Developer shall not install or
knowingly pennit to be installed on the exterior of any improvement or building on any fences or any
antenna or other television or radio receiving device, excepting satellite dishes having a diameter of
eighteen inches (18") or less, without prior written consent of City. This prohibition shall not
prohibit the installation of cable television or subscription wires or receiving devices.
Section 10. Structural Change. Nothing shall be done on the Site in, on or to any building
which would structurally change the exterior or the interior bearing walls of any such building or
structure, except as otherwise provided herein. Nothing herein shall affect the rights of the
Developer to repair, alter or construct improvements on the buildings on the Site unless such repair,
alteration or improvement would impair the structural integrity and/or exterior appearance of said
buildings. Nothing herein shall be deemed to prohibit work ordered to be perfonned by the City
building official.
Section 11. Compliance with Laws. The Developer shall comply with all applicable laws
in connection with the development and use of the Site, including without limitation the California
Community Redevelopment Law (Health and Safety Code Section 33000, et seq.) and Fair Housing
Act (42 U.S.C. ~ 3601, et seq., and 24 C.F.R. ~ 100.300, et seq.). The Developer is a sophisticated
party, with substantial experience in the acquisition, development, financing, obtaining financing for,
marketing, and operation of affordable housing projects, and with the negotiation, review, and
preparation of agreements and other documents in connection with such activities. The Developer is
familiar with and has reviewed all laws and regulations pertaining to the acquisition, development
and operation of the Rental Project and has obtained advice from any advisers of its own choosing in
connection with this Agreement.
ARTICLE III
DUTIES OF DEVELOPER: SPECIFIC MAINTENANCE RESPONSIBILITIES
Section 1. Exterior Building Maintenance. All exterior, painted surfaces shall be
maintained at all times in a clean and presentable manner, free from chipping, cracking and defacing
marks. Any such defacing marks shall be cleaned or removed within a reasonable period of time as
set forth herein.
Attachment No.9
Page 9 of 14
DOCS0C\88J 805v J 0\22707 .0007
Section 2. Front and Side Exteriors. The Developer shall at all times maintain the front
exterior and yard in a clean, safe and presentable manner, free from defacing marks or any disrepair
and any visible side exteriors. The Developer shall hire maintenance personnel to maintain and/or
repair any front exterior or yard or visible side yard and exterior of any lot or building.
Section 3. Graffiti Removal. All graffiti, and defacement of any type, including marks,
words and pictures must be removed and any necessary painting or repair completed by the later to
occur of (i) seventy-two (72) hours of their creation or (ii) seventy-two (72) hours after notice to
Developer.
Section 4. Driveways. All driveways must be paved and maintained with impervious
material in accordance with the Arroyo Grande Municipal Code. In addition, all water must be made
to drain freely to the public part of the waterway without any pooling.
Section 5. Exterior TIlumination. The Developer shall at all times maintain adequate
lighting in all entrance ways, garages and parking areas. Adequate lighting shall mean outdoor, night
lighting designed and installed, which provides no less than one (1.0) foot candles in the parking
areas and no less than one and one-half (1-1/2) foot candles in the walking areas or cornmon areas
and no less than 0.2 foot candles at the point ofleast illumination.
Section 6. Front Setbacks. All front setback areas that are not buildings, driveways or
walkways shall be adequately and appropriately landscaped in accordance with minimum standards
established by the City and shall be maintained by the Developer. The landscaping shall meet
minimum standards set from time to time by the City.
Section 7. Trash Bins. All trash shall be collected and placed at all times in an
enclosable bin to be placed in a designated refuse/trash bin area. The designated area shall be located
so that the bin will, to the extent possible, be readily accessible from the street.
Section 8. Prohibited Signs. No sign of any kind shall be displayed to the public view
on or from any portion of the Site without the approval of the City and appropriate City departments
if any as required by the City Code.
ARTICLE IV
OBLIGATION TO MAINTAIN. REPAIR AND REBUILD
Section 1. Maintenance by Developer. The Developer shall, at its sole cost and expense,
maintain and repair the Site and the improvements thereon keeping the same in a decent, safe and
sanitary manner, in accordance with the United States Department of Housing and Urban
Development ("HUD") Housing Quality Standards ("HQS"), and in good condition and making all
repairs as they may be required by these CC&Rs and by all applicable Municipal Code and Uniform
Code provisions. The Developer shall also maintain the landscaping required to be planted in a
healthy condition. If, at any time, Developer fails to maintain the Rental Project or any portion
thereof, and said condition is not corrected after the expiration of forty-five (45) days from the date
of written notice from the Agency, either the Agency or the City may perform the necessary
maintenance and Developer shall pay such costs as are reasonably incurred for such maintenance.
Payment shall be due within fifteen (15) days of receipt of an invoice from the Agency or the City.
Attachment No.9
Page 10 of 14
DOCSOC\88180Svl OIJ.2707 .0007
Section 2. Damage and Destruction Affecting Proiect - Developer's Duty to Rebuild. If
all or any portion of the Site and the improvements thereon is damaged or destroyed by fire or other
casualty, it shall be the duty of the Developer to rebuild, repair or reconstruct said portion of the Site
and/or the improvements in a timely manner which will restore it to Code compliance condition.
In furtherance of the requirements of this Section 2, Developer shall keep the construction on
the Site insured by carriers at all times satisfactory to Agency against loss by fire and such other
hazards, casualties, liabilities and contingencies as included within an all risk extended coverage
hazard insurance policy, in an amount of the full replacement cost of the constructions. In the event
ofloss, Developer shall give prompt notice to the insurance carrier and to the Agency.
If the Site is abandoned by the Developer, or if Developer fails to respond to Agency within
thirty (30) days from the date notice is mailed by Agency to Developer that the insurance carrier
offers to settle a claim for insurance benefits, Agency is authorized to collect and apply the insurance
proceeds at Agency's option either to restoration or repair of the Site.
Section 3. Variance in Exterior Apoearance and Design. In the event the Rental Project
sustains substantial physical damage due to a casualty event, the Developer may apply to the City of
Arroyo Grande for approval to reconstruct, rebuild or repair in a manner which will provide different
exterior appearance and lot design from that which existed prior to the date ofthe casualty.
Section 4. Time Limitation. Upon damage to the Site or the Rental Project or other
improvements, the Developer shall be obligated to proceed with all due diligence hereunder and
commence reconstruction within two (2) months after the damage occurs and complete
reconstruction within six (6) months after damage occurs or demolition and vacate within two (2)
months, unless prevented by causes beyond their reasonable control, in which event reconstruction
shall be commenced at the earliest feasible time.
ARTICLE V
ENFORCEMENT
Section 1. Remedies. Breach of the covenants contained in the Declaration may be
enjoined, abated or remedied by appropriate legal proceeding by the Agency or City.
This Declaration does not in any way infringe on the right or duties of the City of Arroyo
Grande to enforce any of the provisions of the Arroyo Grande Municipal Code including, but not
limited to, the abatement of dangerous buildings.
Section 2. Nuisance. The result of every act or omission whereby any of the covenants
contained in this Declaration are violated in whole or in part is hereby declared to be and constitutes
a nuisance, and every remedy allowable at law or equity, against a nuisance, either public or private,
shall be applicable against every such result and may be exercised by any owner or its successors in
interest, without derogation of the City's rights under law.
Section 3. Ri2bt of Entrv. In addition to the above general rights of enforcement, the
City shall have the right through its agents and employees, to enter upon any part of the project area
for the purpose of enforcing the California Vehicle Code, and the ordinances and other regulations of
the City, and for maintenance and/or repair of any or all publicly owned utilities. In addition, the
City has the right of entry at reasonable hours and upon and after reasonable attempts to contact
Attachment No.9
Page 11 of14
rxx;S0C\88180SvIOIJ.2707.0007
---... ---- .._--,...-
Developer, on any lot to effect emergency repairs or maintenance which the Developer has failed to
perfonn. Subsequent to sixty (60) days written notice to the Developer specifically outlining the
Developer's noncompliance, the City shall have the right of entry on the Site at reasonable hours to
enforce compliance with this Declaration which the Developer has failed to perfonn.
Section 4. Costs Of Repair. The costs borne by the City or Agency of any such repairs
or maintenance emergency and/or non-emergency, shall become a charge for which Developer shall
be responsible.
Section 5. Cumulative Remedies. The remedies herein provided for breach of the
covenants contained in this Declaration shall be deemed cumulative, and none of such remedies shall
be deemed exclusive.
Section 6. Failure to Enforce. The failure to enforce any of the covenants contained in
this Declaration shall not constitute a waiver of the right to enforce the same thereafter.
Section 7. Enforcement and Nonliability. The City or Agency may from time to time
make such efforts, if any, as it shall deem appropriate enforce and/or assist in enforcing this
Declaration. However, neither the Agency nor the City will not be subject to any liability for failure
to affinnatively enforce any provision of this Declaration.
ARTICLE VI
GENERAL PROVISIONS
Section I. Covenant Against Partition. By acceptance of its interest in the Site, the
Developer shall be deemed to covenant for itself and for its heirs, representatives, successors and
assigns, that it will not institute legal proceedings or otherwise seek to effect partition of its right and
interest in the interest being conveyed to the Developer, or the burdens running with the land as a
result of this Regulatory Agreement.
Section 2. Severability. Invalidation of anyone of these covenants or restrictions by
judgment or court order shall in no way affect any other provisions which shall remain in all force
and effect.
Section 3. Tenn. This Declaration shall run with and bind the interest of the Developer
in the Site, and shall inure to the owner(s) of any property subject to this Declaration, his legal
representatives, heirs, successors and assigns, and as provided in Article VI, Sections 2 and 3, be
enforceable by the City, for a tenn equal to the Required Covenant Period as defined in the AHA,
provided; however, that the covenants regarding nondiscrimination set forth in Section 4 of Article II
of this Declaration shall remain in effect for petpetuity.
Section 4. Construction. The provisions of this Declaration shall be liberally construed
to effectuate its purpose of creating a unifonn plan for the development and operation of rental
housing available at Affordable Rent for Very Low Income Households and Lower Income
Households. The article and Section headings have been inserted for convenience only, and shall not
be considered or referred to in resolving questions of intetpretation or construction.
The Developer shall be obligated by this Declaration to comply with the provisions hereof.
Attachment No.9
Page 12 of 14
DOCS0C\881805vl 0\22707.0007
_.-_._'-~' -------- ____0_ -- -, ,-~-_._._- "--
Section 5. Amendments. This Declaration may be amended only by the written
agreement ofthe Developer, the Agency and the City.
Section 6. Encroachments. None of the rights and obligations of the Developer created
herein shall be altered in any way by encroachments due to settlement or shifting of structures or any
other cause. There shall be valid easements for the maintenance of said encroachments so long as
they shall exist; provided, however, that in no event shall a valid easement for encroachment be
created in favor of Developer if said encroachment occurs due to the willful conduct of said
Developer.
Section 7. Notices. Any notice permitted or required to be delivered as provided herein
to Developer shall be in writing and may be delivered either personally or by certified mail. Notice
to the Agency shall be made by certified mail to the Executive Director or his designee at 214 East
Branch Street, Arroyo Grande, California 93421 (with a copy to Stradling Y occa Carlson & Rauth,
Attention: Mark J. Huebsch, 660 Newport Center Drive, Suite 1600, Newport Beach, California
92660), and shall be effective upon receipt. Notice to Developer shall be made by certified mail to
Courtland-Arroyo Grande, L.P., a California limited partnership, , Suite _,
, California , and shall be effective upon receipt. Such address may be changed
from time to time by notice in writing.
Attachment No.9
Page 13 of 14
DOCS0C\88180Svl 0'11.2707 .0007
_....._-_._~~--" -----,.--,.-
ARROYO GRANDE REDEVELOPMENT
AGENCY,
a public body, corporate and politic
By:
Dated: Steven Adams, Executive Director
ATTEST:
By:
Agency Secretary
CITY OF ARROYO GRANDE,
a municipal corporation
By:
Dated: Steven Adams, City Manager
ATTEST:
By:
City Clerk
COURTLAND-ARROYO GRANDE, L.P.
(a California limited partnership)
By: Foundation for Affordable Housing, Inc.
a California Corporation
(Its: General Partner)
By:
Thomas E. Willard
Its: President
By: MFP A, Inc.
a California Corporation
(Its: General Partner)
By:
Sean Clark
Its: Vice-President
Attachment No.9
Page 14 of 14
DOCSOC\881805vl 0\22707 .0007
-,_._-~'".~----_. ~--
EXHIBIT A
LEGAL DESCRIPTION
[To Come]
Exhibit "A" to Attachment No. 11
Page 1 of 1
DOCS0C\881805v I 0\22707.0007
m____.__-_.____ --'--'-' -
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On _, before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
0 personally known to me
-or-
0 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 hislher/their authorized capacity(ies), and that by hislher/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
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
0 Individual
0 Corporate Officer
Title(s) Title Or Type Of Document
0 Partner( s) 0 Limited
0 General
0 Attorney-In-Fact
0 Trustee(s)
0 Guardian/Conservator Number Of Pages
0 Other:
Signer is representing:
Name OfPerson(s) Or Entity(ies)
Date Of Documents
Signer(s) Other Than Named Above
DOCSQC\88180Sv I 0\22707.0007
>'---'------~'--------- -_. -- ---,--,-------------
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On _, before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
0 personally known to me
-or-
0 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 hislher/their authorized capacity(ies), and that by hislher/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
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
0 Individual
0 Corporate Officer
Title(s) Title Or Type Of Document
0 Partner(s) 0 Limited
0 General
0 Attorney-In-Fact
0 Trustee(s)
0 Guardian/Conservator Number Of Pages
0 Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Documents
Signer(s) Other Than Named Above
DOCSOC\88180Sv I 0\22707.0007
--~--, ------ ----~-~ ---"--,._---~----
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On _, before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
0 personally known to me
-or-
0 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 hislher/their authorized capacity(ies), and that by hislher/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
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
0 Individual
0 Corporate Officer
Title(s) Title Or Type Of Document
0 Partner(s) 0 Limited
0 General
0 Attorney-In-Fact
0 Trustee(s)
0 Guardian/Conservator Number Of Pages
0 Other:
Signer is representing:
Name OfPerson(s) Or Entity(ies)
Date Of Documents
Signer(s) Other Than Named Above
,
DOCSOC\88180Svl 0\22707.0007
--'---- ~-- ~,----,-,.,.
ATTACHMENT NO. 10
INCOME VERIFICATION
Part I -- General Infonnation
1. Project Location:
2. Landlord's Name:
Part II -- Unit Infonnation
3. Unit 4. Number of 5. Monthly 6. Number of
Number Bedrooms Rent Occupants
Part III -- Affidavit of Ten ant
I, , and I, , as applicants for rental of an Apartment Unit at the
above-described location, do hereby represent and warrant as follows:
A. (My/Our) gross income (anticipated total annual income) does not exceed fifty percent
(50%) of the median income for the area defined by HUD which includes and consists
primarily of San Luis Obispo County as such income levels are established and amended
&om time to time pursuant to Section 8 of the United States Housing Act of 1937 and
published by the State Department of Housing and Community Development in the
California Code of Regulations. (IIWe) understand that the applicable median income is
$_. The following computation includes all income (IIwe) anticipate receiving for the
12-month period beginning on the date (I/we) execute a rental agreement for an Affordable
Unit or the date on which (IIwe) will initially occupy such unit, whichever is earlier.
Tenant(s)' Initials
B. (My/Our) gross income (anticipated total annual income) exceeds fifty percent (50%) but
does not exceed sixty percent (60".) of the median income for the area defined by HUD
which includes and consists primarily of San Luis Obispo County as such income levels are
established and amended &om time to time pursuant to Section 8 of the United States
Housing Act of 1937 and published by the State Department of Housing and Community
Development in the California Code of Regulations. (I/We) understand that the applicable
median income is $ . The following computation includes all income (IIwe) anticipate
receiving for the 12-month period beginning on the date (IIwe) execute a rental agreement for
an Affordable Unit or the date on which (IIwe) will initially occupy such unit, whichever is
earlier.
Tenant(s)' Initials
C. (My/Our) gross income (anticipated total annual income) exceeds eighty percent (80%) but
does not exceed one hundred twenty percent (120%) of the median income for the area
Attachment No. 10
Page 10f6
DOCSOC\88180Svl 0\22707 .0007
---.---. ----- --- - -.--- .....--"-_._..~.._..-
defined by HUD which includes and consists primarily of San Luis Obispo County as such
income levels are established and amended from time to time pursuant to Section 8 of the
United States Housing Act of 1937 and published by the State Department of Housing and
Community Development in the California Code of Regulations. ' (I/We) understand that the
applicable median income is $ The following computation includes all income
(I/we) anticipate receiving for the 12-month period beginning on the date (I/we) execute a
rental agreement for an Affordable Unit or the date on which (I/we) will initially occupy such
unit, whichever is earlier.
Tenant(s)' Initials
D. (My/Our) gross income (anticipated total annual income) exceeds one hundred twenty
(120%) of the median income for the area defined by HUD which includes and consists
primarily of San Luis Obispo County as such income levels are established and amended
from time to time pursuant to Section 8 of the United States Housing Act of 1937 and
published by the State Department of Housing and Community Development in the
California Code of Regulations. (I/We) understand that the applicable median income is
$_. The following computation includes all income (I/we) anticipate receiving for the
12-month period beginning on the date (I/we) execute a rental agreement for an Affordable
Unit or the date on which (I/we) will initially occupy such unit, whichever is earlier.
Tenant(s)' Initials
Attachment No. 10
Page 2of6
DOCSOC\881SOSvl OIJ.2707 .0007
1. Tenants qualifYing as A and Bt abovet must complete the following:
Monthly Gross Income
(All Sources of Income of All Adult Household Members Must be Listed)
Source Head of Co-Tenants Total
Household
Gross amountt before payroll
deductions of wag eSt salariest
overtime paYt commissions, feest
tips and bonuses
Interest and/or dividends
Net income from business or from
rental property
Social securitYt annuitiest insurance
policiest pension/retirement fundst
disability or death benefits received
periodically
Payment in lieu of earnings, such as
unemployment and disability
compensationt workerts
compensation and severance pay
AlimonYt child supportt other
periodic allowances
Public assistancet welfare payments
Regular pay, special pay and
allowances of members of Armed
Forces
Other
I Total: I
Total x 12 = Gross Annual Household Income
Note: The following items are not considered income: casual or sporadic gifts; amounts specifically
for or in reimbursement of medical expenses; lump sum payments such as inheritancest insurance
payments (including payments under health and accident insurance and worker's compensation),
Attachment No. 10
Page 3 of6
DOCS0C\88180Svl 0\22707 .0007
---- .~----
capital gains and settlement for personal or property losses; educational scholarships paid directly to
the student or educational institution; government benefits to a veteran for education; special pay to a
serviceman head of family away from home and under hostile fire; foster child care payments; value
of coupon allotments for purpose of food under Food Stamp Act of 1964 which is in excess of
amount actually charged the eligible household; relocation payments under Title II of Unifonn
Relocation Assistance and Real Property Acquisition Policies Act of 1970; payments received
pursuant to participation in the following programs: VISTA, Service Learning Programs, and
Special Volunteer Programs, SCORE, ACE, Retired Senior Volunteer Program, Foster Grandparent
Program, Older American Community Services Program, and National Volunteer Program to Assist
Small Business Experience.
2. This affidavit is made with the knowledge that it will be relied upon by the Landlord to
detennine maximum income for eligibility and (IIwe) warrant that all infonnation set forth in
'this document is true, correct and complete and based upon infonnation (IIwe) deem reliable
and that the estimate contained in paragraph 1 of this Part III is reasonable and based upon
such investigation as the undersigned deemed necessary.
3. (I/W e) will assist the Landlord in obtaining any infonnation or documents required to verify
the statements made in this Part III and have attached hereto copies of federal income tax
return for most recent tax year in which a return was filed (past two years federal income tax
returns for self-employed persons).
4. (I/We) acknowledge that (IIwe) have been advised that the making of any misrepresentation
or misstatement in this affidavit will constitute a material breach of (my/our) agreement with
the Landlord to rent the unit and will additionally enable the Landlord and/or the Arroyo
Grande Redevelopment Agency to initiate and pursue all applicable legal and equitable
remedies with respect to the unit and to me/us.
(I/W e) do hereby swear under penalty of perjury that the foregoing statements are true and
correct.
Date Tenant
Date Tenant
Attachment No. 10
Page 4 of6
DOCS0C\88180Svl 0\22707 .0007
INCOME VERIFICATION
(for emDloved Dersons)
The undersigned employee has applied for a rental unit located in a project financed under a
multifamily housing program of the City of Arroyo Grande and the Arroyo Grande Redevelopment
Agency for persons of low or moderate income. Every income statement of a prospective tenant
must be stringently verified. Please indicate below the employee's current annual income ftom
wages, overtime, bonuses, commissions or any other fonn 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 pennission to disclose my income to in order that they may
detennine my income eligibility for rental of an apartment located in their project which has been
financed under a multifamily housing program of the City of Arroyo Grande and the Arroyo Grande
Redevelopment Agency.
Signature Date
Please send to:
Attachment No. 10
Page 5 of6
DOCS0C\881805vl 0\22707.0007
_._---~---,-,.~--- -------- ----'----- ,- -.--
INCOME VERIFICATION
(for self-emDloved Dersons)
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 troe and complete to the best of my knowledge.
Signature Date
Attachment No. 10
Page 6of6
DOCS0C\881805vl 0\22707 .0007
- --- -----~ .-~-~-- -----_,,__-,0'--
ATTACHMENT NO. 11
AGENCY NOTE
PROMISSORY NOTE
$800,000.00 , 2004
Arroyo Grande, California
FOR VALUE RECEIVED, the undersigned COURTLAND-ARROYO GRANDE, L.P., a
California limited partnership ("Maker" or "Developer"), having its principal place of business at
, Suite_, , California _' promises to pay to the
order of ARROYO GRANDE REDEVELOPMENT AGENCY, a public body, corporate and politic
("Payee" or "Agency"), at 214 East Branch Street, Arroyo Grande, California 93421, or at such other
place as the holder of this Note from time to time may designate in writing, the principal sum of
Eight Hundred Thousand Dollars ($800,000.00) , together with interest on the unpaid principal
amount of this Promissory Note ("Note") from time to time outstanding at the rate of three percent
(3%) simple per annum (herein, the "Interest Rate") in lawful money of the United States of
America. This Note is being delivered pursuant to the Amended and Restated Affordable Housing
Agreement dated as of December 9, 2003, between Maker and Payee (the "AHA"). The loan
evidenced by this Note shall be governed by such provisions of the AHA (including without
limitation the attachments thereto) as shall be applicable. All capitalized terms used herein shall
have the meanings set forth therefor in the AHA.
1. Payments of Principal and Interest. Payments hereunder shall be due on the first day
of April commencing as of April 1, 2006 and continuing until the thirtieth (30th) anniversary of the
Date of Agreement (the "Maturity Date") unless sooner satisfied.
Excepting for (i) defaults, (ii) events resulting in acceleration under this Agency Note or
(iii) the occurrence of the Maturity Date, in which events the entire amount of this Agency Note shall
become immediately due and payable and shall be payable from any revenues of the Maker without
limitation, payments under this Agency Note shall, at the option of the Maker, be limited to Residual
Receipts as provided below.
First, Residual Receipts shall be made available to pay accrued interest at the rate of three
percent (3%) simple interest per annum on the Developer's Fee with such interest commencing to
accrue upon the completion of the Improvements (in accordance with the Agreement).
Second, all Residual Receipts shall be available to pay the remaining principal of the
Developer's Fee, for purposes of this Agency Note.
Third, Residual Receipts shall be made available until the Developer recovers an eight
percent (8%) annual compounded return on the Developer's Equity (as determined annually in good
faith by the Executive Director).
Fourth, Residual Receipts shall be made available until the Developer recovers the
Developer's Equity (in accordance with the Agreement).
Fifth, after the accrued interest and the Developer's Fee and the Developer's Equity have
been paid in full, fifty percent (50%) of Residual Receipts shall be disbursed to Agency as payments
Attachment No. 11
Page 1 of4
DOCS0C\881805vl 0\22707.0007
,- -- ---~------._-_._---~--- -- "---<--------
under this Agency Note. The Agency Disbursement Amount shall be deemed to bear interest at the
rate of three percent (3%) simple per annum, accruing from the Date of Agreement.
Notwithstanding any provision of this Agency Note to contrary effect, the Maker shall make
payment in full to the Agency of the outstanding balance under this Agency Note on the Maturity
Date.
2. Payments shall be accelerated and shall be due and payable hereunder in the event of
the occurrence of any default under the AHA, the Agency Deed of Trust, the Agency Developer
CC&Rs, or any debt that is senior to this Note.
3. Other Loan Documents. Repayment of this Note is secured by a deed of trust (the
"Deed of Trust") of this date executed by Maker for the benefit of Payee encumbering the property
described in the Deed of Trust (the "Property").
4. Prepavrnent. Maker shall have the right to prepay amounts owing under this Note at
any time.
5. Due on Sale or Encumbrance. In the event of any Transfer (as defined below) of the
Property, or any portion thereof or interest therein, Payee, shall have the absolute right at its option,
without prior demand or notice, to declare all sums secured hereby immediately due and payable. As
used herein, the tenn "Transfer" means and includes the direct or indirect sale, transfer, conveyance,
mortgage for an amount greater than the outstanding balance of a loan existing as of the time such
refinancing is commenced, further encumbrance, assignment, or other alienation of the Property, or
any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or
othetwise, the execution of any installment land sale contract, sales agreement or similar instrument
affecting all or a portion of the Property, granting of an option to purchase any portion of or interest
in the Property or any interest therein, or the lease of all or substantially all of the Property or of all
or substantially all of the improvements located thereon. "Transfer" shall not include the leasing of
individual dwelling units on the Property so long as Maker complies with the provisions of the
Agency Developer CC&Rs and the AHA relating to such leasing activity. Failure of Beneficiary to
exercise the option to declare all sums secured hereby immediately due and payable upon a Transfer
will not constitute waiver of the right to exercise this option in the event of any subsequent Transfer.
Payments under this Section 5 shall be subject and subordinate to payments to the recovery by
Developer of the Developer's Fee (and interest thereon as prescribed above) and the Developer's
Equity (and return thereon as prescribed above).
6. Miscellaneous.
(a) Governing Law. All questions with respect to the construction of this Note
, and the rights and liabilities of the parties to this Note shall be governed by the laws of the State of
California.
(b) Binding on Successors. This Note shall inure to the benefit of, and shall be
binding upon, the successors and assigns of each of the parties to this Note.
Attachment No. 11
Page 2 of4
DOCSOC\881805vl 0\22707 .0007
-,--..---------' ---,--~
(c) Attorneys' Fees.
(i) Maker shall reimburse Payee for all reasonable attorneys' fees, costs
and expenses, incurred by Payee in connection with the enforcement of Payee's rights under this
Note, including, without limitation, reasonable attorneys' fees, costs and expenses for trial, appellate
proceedings, out-of-court negotiations, workouts and settlements or for enforcement of rights under
any state or federal statute, including, without limitation, reasonable attorneys' fees, costs and
expenses incurred to protect Payee's security' and attorneys' fees, costs and expenses incurred in
bankruptcy and insolvency proceedings such as (but not limited to) seeking relief ftom stay in a
bankruptcy proceeding. The tenn "expenses" means any expenses incurred by Payee in connection
with any of the out-of-court, or state, federal or bankruptcy proceedings referred to above, including,
without limitation, the fees and expenses of any appraisers, consultants and expert witnesses retained
or consulted by Payee in connection with any such proceeding.
(ii) Payee shall also be entitled to its attorneys' fees, costs and expenses
incurred in any post-judgment proceedings to collect and enforce the judgment. This provision is
separate and several and shall survive the merger of this Note into any judgment on this Note.
(d) Entire Agreement. This Note and the relevant provisions of the AHA
constitute the entire agreement and understanding between and among the parties in respect of the
subject matter of such agreements and supercede all prior agreements and understandings with
respect to such subject matter, whether oral or written.
(e) Time of the Essence. Time if of the essence with respect to every provision
hereof.
(f) Waivers by Maker. Except as othetwise provided in any agreement executed
in connection with this Note, Maker waives: presentment; demand; notice of dishonor; notice of
default or delinquency; notice of acceleration; notice of protest and nonpayment; notice of costs,
expenses or losses and interest thereon; and diligence in taking any action to collect any sums arising
under this Note or in any proceeding against any of the rights or interests in or to properties securing
payment of this Note.
(g) Non-waivers. No previous waiver and no failure or delay by Maker in acting
with respect to the tenns of this Note or the Deed of Trust shall constitute a waiver of any breach,
default, or failure of condition under this Note, the Deed of Trust or the obligations secured thereby.
A waiver of any tenn of this Note, the Deed of Trust or of any of the obligations secured thereby
must be made in writing and shall be limited to the express written tenns of such waiver. In the
Attachment No. 11
Page 3 of 4
DOCSOC\88180Svl 0\22707 .0007
_H.,_. -----' ---~~ --
-
event of any inconsistencies between the tenns of this Note and the tenns of any other document
related to the loan evidenced by this Note, the tenns of this Note shall prevail.
COURTLAND-ARROYO GRANDE, L.P.
(a California limited partnership)
By: Foundation for Affordable Housing, Inc.
a California Corporation
(Its: General Partner)
By:
Thomas E. Willard
Its: President
By: MFP A, Inc.
a California Corporation
(Its: General Partner)
By:
Sean Clark
Its: Vice-President
Attachment No. 11
Page 4 of 4
DOCS0C\881805vl 0\22707.0007
-..--------------------- --..-. ,-- <._._.~----
ATTACHMENT NO. 12
AGENCY DEED OF TRUST
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
Arroyo Grande Redevelopment Agency
214 East Branch Street
Arroyo Grande, California 93421
Attention: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(SHORT FORM)
This DEED OF TRUST, made as of ,2002 , between
COURTLAND-ARROYO GRANDE, L.P., a California limited partnership herein called TRUSTOR, whose
address is:
, Suite --' , California
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called TRUSTEE, and
the ARROYO GRANDE REDEVELOPMENT AGENCY, a public body corporate and politic, herein called
BENEFICIARY,
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property in the City of Arroyo
Grande,
County of San Luis Obispo, State of California, described as:
SEE EXHffiIT "A" ATIACHED HERETO AND MADE A PART HEREOF.
together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter
given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the purpose of
securing (1) payment of the sum of $800,000.00 with interest thereon according to the terms of a promissory note
or notes of even date herewith made by Trustor, payable to order of Beneficiary, and extensions or renewals
thereof, (2) the performance of each agreement of Trustor incorporated by reference or contained herein and
(3) payment of additional sums and interest thereon which may hereafter be loaned to Trustor, or his successors or
assigns, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property above described, Trustor expressly
makes each and all of the agreements, and adopts and agrees to perform and be bound by each and all of the tenns
and provisions set forth in subdivision A, and it is mutually agreed that each and all of the terms and provisions set
forth in subdivision B of the fictitious deed of trust recorded in Orange County August 17, 1964, and in all other
counties August 18, 1964, in the book and at the page of Official Records in the office of the county recorder of the
county where said property is located, noted below opposite the name of such county, namely:
Attachment No. 12
Page 1 of3
DOCSOC\88) 80Sv) 0\22707 .0007
------. -"-'--,---, .~,-----._,-
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE
Alameda 1288 556 Kings 858 713 Placer 1028 379 Sierra 38 187
Alpine 3 130-31 Lake 437 110 Plumas 166 1307 ' Siskiyou 506 762
Amador 133 438 Lassen 192 367 Riverside 3178 347 Solano 1287 621
Butte 1330 513 Los Angeles T3878 874 Sacramento 5039 124 Sonoma 2067 427
Calaveras 185 338 Madera 911 136 San Benito 300 405 Stanislaus 1970 56
, Colusa 323 391 Marin 1849 122 S. Bernardino 6213 768 Sutter 655 585
Contra Costa 4684 I Mariposa 90 453 S. Francisco A-804 596 Tehama 457 183
Del Norte 101 549 Mendocino 667 99 S. Joaquin 2855 283 Trinity 108 595
EI Dorado 704 635 Merced 1660 753 S. Luis Obispo 1311 137 Tulare 2530 108
Fresno 5052 623 Madoc 191 93 San Mateo 4778 175 Tuolumne 177 160
Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237
Humboldt 801 83 Monterey 357 239 Santa Clara 6626 664 Yolo 769 16
Imperial 1189 701 Napa 704 742 Santa Cruz 1638 607 Yuba 398 693
Inyo 165 672 Nevada 363 94 Shasta 800 633
Kern 3756 690 Orange 7182 18 San Diego 1964 149774
Series 5
shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B, (identical in all counties, and printed on pages 3 and 4 hereof)
are by the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as
fully as set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured
hereby, provided the charge therefor does not exceed the maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to
him at his address hereinbefore set forth.
Attachment No. 12
Page 2 of3
DOCSOC\88180Svl 0\22707 .()()()7
-,....~.._,_.__.._._---- ----.--
) Signature of Trustor
STATE OF CALIFORNIA ss.
COUNTY OF ) COURTLAND-ARROYO GRANDE, L.P.
On before me, (a California limited partnership)
personally appeared , By: Foundation for Affordable Housing, Inc.
personally known to me (or proved to me on the basis of a California Corporation
satisfactory evidence) to be the person(s) whose names(s) is/are (Its: General Partner)
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in hislher/their authorized
capacity(ies), and that by hislher/their signature(s) on the By:
instrument the person(s), or the entity upon behalf of which the Thomas E. Willard
person( s) acted, executed the instrument. Its: President
WITNESS my hand and official seal
SIGNATURE By: MFP A, Inc.
a California Corporation
(Its: General Partner)
By:
Sean Clark
Its: Vice-President
(This area for official notaries seal)
Attachment No. 12
Page 3 of3
DOCSOC\88180Svl O\l2707 .0007
-----.-,-.,------.-- -----.---- - -
EXHIBIT "A"
LEGAL DESCRIPTION
[To Come]
Exhibit "A" to Attachment No. 12
Page 1 of 1
DOCSOC\881805v 1 0\22707.0007
-..------..-.------ ---"'- -' __._._k,_,_~~___'___
EXHIBIT "B"
RIDER TO DEED OF TRUST
Exhibit B to Deed of Trust with Assignment of Rents dated as of , 2003, executed
by Courtland-Arroyo Grande, L.P., a California limited partnership, as "Trustor," to Chicago Title
Insurance Company, a California corporation, as Trustee, for the benefit of Arroyo Grande
Redevelopment Agency, a public body, corporate and politic, as "Beneficiary" ("Deed of Trust").
1. DEFAULT - OTHER DEEDS OF TRUST. DEED. COVENANTS CONDITIONS AND
RESTRICTIONS (CC&Rs) AND AGREEMENT. A default under any of the following
shall, at Beneficiary's option, constitute a default under this Deed of Trust:
(a) A default under that certain Amended and Restated Affordable Housing Agreement
("Agreement") dated as of December 9, 2003, between Trustor and Beneficiary or
any default under any Agency Note or Agency Deed of Trust delivered under the
Agreement, whether senior or junior to this Deed of Trust (all capitalized tenns not
defined herein shall have the meanings established therefor under the Agreement);
(b) A default under that certain deed of trust dated as of , 200-, executed by
Trustor in favor of Bank, a California banking corporation encumbering
the Property; which deed of trust secures a promissory note in the original principal
amount of $ (the" Bank Deed of Trust");
(c) A default under any other deed of trust encumbering the Property which has a priority
senior to this Deed of Trust; or
(d) A default under the "Agency Developer CC&Rs" (as executed and recorded pursuant
to the Agreement).
2. DEFAULT - DEED OF TRUST. A default under this Deed of Trust shall, at Beneficiary's
option, as appropriate, constitute a default under the deeds of trust or other instruments
referenced in Paragraph l(a) through (e), inclusive (collectively the "Other Deeds of Trust"),
of this Rider.
3. NON-IMPAIRMENT. Except as supplemented and/or modified by this Deed of Trust, all
of the tenns, covenants and conditions of the Other Deeds of Trust and the other loan
documents executed in connection therewith shall remain in full force and effect.
4. DUE ON SALE OR ENCUMBRANCE. In the event of any Transfer (as defined below) of
the Property, or any portion thereof or interest therein, Beneficiary shall have the absolute
right at its option, without prior demand or notice, to declare all sums secured hereby
immediately due and payable. As used herein, the term "Transfer" means and includes the
direct or indirect sale, transfer, conveyance, mortgage, further encumbrance, assignment, or
other alienation of the Property, or any portion thereof or interest therein, whether voluntary,
involuntary, by operation of law or otherwise, the execution of any installment land sale
contract, sales agreement or similar instrument affecting all or a portion of the Property,
granting of an option to purchase any portion of or interest in the Property or any interest
Exhibit "B" to Attachment No. 12
Page 1 of5
DOCS0C\881805vl 0\22707 .0007
-,,~,- --.-----
therein, or the lease of all or substantially all of the Property or of all or substantially all of
the improvements situated on the Property. "Transfer" shall not include the leasing of
individual dwelling units on the Property so long as Trustor complies with the provisions of
the Agreement relating to such leasing activity. Failure of Beneficiary to exercise the option
to declare all sums secured hereby immediately due and payable upon a Transfer will not
constitute waiver of the right to exercise this option in the event of any subsequent Transfer.
5. PRIORITY OF DEED OF TRUST. This Deed of Trust is subject and subordinate
to the following deed of trust: The Bank Deed of Trust.
Exhibit "B" to Attachment No. 12
Page 2 of5
DOCS0C\881805vl 0'22707 .0007
.--.--.--.-. _.._- -------------
h.._ . ,,___ _. _"__'__~"'''_'_'_
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in
California as stated in the foregoing Deed of Trust and incorporated by reference in said Deed of Trust as being a
part thereof as if set forth at length therein.
G. To protect the security of this Deed of Trust, Trustor agrees:
(1) To keep said property in good condition and repair; not to remove or demolish any building
thereon; to complete or restore promptly and in good and workmanlike manner any building which may be
constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials
furnished therefor; to comply with all laws affecting said property or requiring any alterations or improvements to be
made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in
violation of law; to cultivate irrigate, fertilize, fumigate, prune and do all other acts which trom the character or use
of said property may be reasonably necessary, the specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable
to Beneficiary. The amount collected under any fire or other insurance policy may be applied by Beneficiary upon
any indebtedness secured hereby and in such order as Beneficiary may determine, or at option of Beneficiary the
entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure
or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the security hereof or the
rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and
attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear,
and in any suit brought by Beneficiary to foreclose this Deed.
(4) to pay: at least ten days before delinquency all taxes and assessments affecting said property,
including assessments on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on
said property or any part thereof, which appear to be prior or superior hereto; all costs, fees and expenses of this
trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee,
but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor trom
any obligation thereof, may: make or do the same in such manner and to such extent as either may deem necessary
to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes;
appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the
judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary
expenses, employ counsel and pay his reasonable fees.
(5) To Pay immediately and without demand all sums so expended by Beneficiary or Trustee, with
interest trom date of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any
statement provided for by law in effect at the date hereof regarding the obligation secured hereby any amount
demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is
demanded.
H. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for public use of or injury to
said property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such
monies received by him in the same manner and with the same effect as above provided for disposition of proceeds
of fire or other insurance.
Exhibit "B" to Attachment No. 12
Page 30f5
DOCS0C\881805vl 0\22707.0007
,- -
(2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not
waive his right either to require prompt payment when due of all other sums so secured or to declare default for
failure so to pay.
(3) That at any time or from time to time, without liability therefor and without notice, upon written
request of Beneficiary and presentation of this Deed and said note for endorsement, and without affecting the
personal liability of any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of
said property; consent to the making of any map or plat thereof; join in granting any easement thereon; or join in any
extension agreement or any agreement subordinating the lien or charge hereof.
(4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and
upon surrender of this Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in
its sole discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the property
then held hereunder. The recitals in such reconveyance or any matters or facts shall be conclusive proof of the
truthfulness thereof. The Grantee in such reconveyance may be described as "the person or persons legally entitled
thereto."
(5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power
and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said property,
reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness secured hereby or in
performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and
payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by a
receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby
secured, enter upon and take possession of said property or any part thereof, in his own name sue for or otherwise
collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and
expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby,
and in such order as Beneficiary may determine. The entering upon and taking possession of said property, the
collection of such rents, issues and profits and the application' thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
(6) That upon default Trustor in payment of any indebtedness secured hereby or in performance of
any agreement hereunder, Beneficiary may declare all sums secured hereby inunediately due and payable by
delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of
election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also
shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of
default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell
said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in
such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States,
payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at
such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the
time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property
so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts
shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as
hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title
in connection with sale, Trustee shall apply the' proceeds of sale to payment of: all sums expended under the terms
hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums
then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto.
(7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to
time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder,
which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of
the county or counties where said property is situated, shall be conclusive proof of proper substitution of such
Exhibit "B" to Attachment No. 12
Page 4 of5
DOCS0C\881805vl 0\22707 .0007
- .....,,~._.,..._-----,.,--, -------..- ---"."....- -_.".._~_..._- ...----.-
successor Trustee or Trustees, who shall, without conveyance ftom the Trustee predecessor, succeed to all its title,
estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and
Beneficiary hereunder, the book and page where this Deed is recorded and the name and address of the new Trustee.
(8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees,
devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder,
including pledgees, of the note secured hereby, whether or not named as Beneficiary herein. In this Deed,
whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number
includes the plural.
(9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a
public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other
Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought
by Trustee.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO CHICAGO TITLE INSURANCE COMPANY, TRUSTEE:
The undersigned is the legal owner and holder of the note or notes, and of all other
indebtedness secured by the foregoing Deed of Trost. Said note or notes, together with all other
indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby
requested and directed on payment to you of any sums owning to you under the tenns of said Deed of
Trust, to cancel said note or notes above mentioned, and all other evidences of indebtedness secured
by said Deed of Trust delivered to you herewith, together with the said Deed of Trost, and to
reconvey, without warranty, to the parties designated by the tenns of said Deed of Trost, all the estate
now held by you under the same.
Dated:
Please mail Deed of Trust,
Note and Reconveyance to
Do not lose or destrov this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation
before reconveyance will be made.
DEED OF TRUST Chicago Title Insurance Company
with power of sale TRUSTEE
Exhibit "B" to Attachment No. 12
Page 5 of5
DOCSOC\88180Svl 0\22707.0007
'-"-~-'--'-~-----~" ------- .--.- .~------
. -.,.--, ..'".._..~_..-...;..._.,-~''''',_.-
ATTACHMENT NO. 13
MEMORANDUM OF AGREEMENT
[TO COME]
Attachment No. 13
Page 1 of 1
DOCS0C\88180Sv 1 0\22707 .0007
ATTACHMENT NO. 14
INTERCREDITOR AND SUBORDINATION AGREEMENT
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
ARROYO GRANDE REDEVELOPMENT AGENCY)
214 East Branch Street )
Arroyo Grande, California 93421 )
Attention: Kelly Wetmore, Agency Secretary )
INTERCREDITOR AND SUBORDINATION AGREEMENT
NOTICE: THIS INTERCREDITOR AND SUBORDINATION AGREEMENT RESULTS IN THE
SECURITY INTEREST UNDER YOUR DEEDS OF TRUST BECOMING SUBJECT TO AND OF
LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY
INSTRUMENT.
This Intercreditor and Subordination Agreement ("Intercreditor and Subordination
Agreement"), made this _ day of , 200_, by and among Courtland-Arroyo Grande,
L.P., a California limited partnership ("Owner or Developer"), which is owner of that certain interest
in real property as legally described on Exhibit "A" hereto and hereinafter described as the
"Property," Arroyo Grande Redevelopment Agency, a public body corporate and politic
("Beneficiary" or "Agency"), present holder and owner of the deed of trust and note first hereinafter
described, and Wells Fargo Bank, NT & SA ("Lender").
WHEREAS, Agency is a California redevelopment agency acting under the California
Community Redevelopment Law, Part 1 of Division 24 of the Health and Safety Code (the
"Redevelopment Law"); and
WHEREAS, the Redevelopment Plan for the Arroyo Grande Redevelopment Project,
sometimes referred to as the Project (herein, the "Project") was adopted by Ordinance No. 479CS by
the City Council of the City of Arroyo Grande (the "Redevelopment Plan"). The redevelopment
project area for the Redevelopment Plan as so amended constitutes the "Project Area"; and
WHEREAS, the Agency IS authorized and empowered under the Community
Redevelopment Law, California Health and Safety Code Sections 33000, et seq. (the "Community
Redevelopment Law"), to enter into agreements for the production, improvement, or preservation of
affordable housing to households oflimited income, with such housing to be available at "Affordable
Rent" (within the meaning of the Redevelopment Law); and
WHEREAS, the Developer is experienced in the development and operation of affordable
multi-family housing, particularly in San Luis Obispo County; and
Attachment No. 14
Page 1 of5
DOCS0C\881805vl 0\22707 .0007
------..-----.----,------ -----'''._--~- --~ -
WHEREAS, the Developer has entered into an Amended and Restated Affordable Housing
Agreement with the Agency dated as of December 9, 2003 (the "AHA") which provides for the
Developer to acquire certain real property (the "Site") located in the City of Arroyo Grande and
within the Project Area of the Agency's Arroyo Grande Redevelopment Project, whereupon the
Developer shall develop one hundred eight (108) dwelling units and related improvements for
occupancy by "Seniors" (as defined below) on the Site and would thereupon rent one hundred seven
(107) of such dwelling units to "Very Low Income Households", "Low Income Households" and/or
"Moderate Income Households", all at "Affordable Rent" in accordance with the "Prescribed Rent
Levels and Tenant Mix," as those terms are defined below. Such development is intended to
implement the Agency's goals and objectives under the Redevelopment Law to provide decent, safe
and sanitary housing for persons of very low income, low income and moderate income, and to
increase, improve and preserve housing available at affordable housing cost to persons of very low
income, low income and moderate income pursuant to the Redevelopment Plan and Health and
Safety Code Sections 33334.2, et seq., and 33413; and
WHEREAS, "Prescribed Rent Levels and Tenant Mix." is defined in the AHA as follows:
"Prescribed Rent Levels and Tenant Mix" means one hundred eight (l08) Units, of which one (1)
Unit will be a manager's Unit, and of which the remaining one hundred seven (107) shall be
available at and occupied at Affordable Rents for the following households: (i) twenty (20) one-
bedroom Units shall be Very Low Income Units; (ii) four (4) two-bedroom Units shall be Very Low
Income Units; (iii) twenty-two (22) one bedroom Units shall be Low Income Units; (iv) six (6) two-
bedroom Units shall be Low Income Units; (v) forty-six (46) one bedroom Units shall be Moderate
Income Units; and (vi) nine (9) two-bedroom Units shall be Moderate Income Units."; and
WHEREAS, Developer shall apply for and obtain an allocation for the obtaining of 4% Low
Income Tax Credits as generally provided for under Section 42 of the Internal Revenue Code and/or
California Revenue and Taxation Code Sections 17057.5, 17058, 23610.4 and 23610.5 and
California Health and Safety Code Section 50199, et seq. ("4% Tax Credits"); and
WHEREAS, under the AHA, the Developer shall develop one hundred eight (108) dwelling
units and not fewer than one hundred seven (107) of those dwelling units to be rented at "Affordable
Rent" and in conformity with the "Prescribed Rent Levels and Tenant Mix" throughout the
"Required Covenant Period" (which is a sixty-year period as more particularly defined in the AHA).
All capitalized items no defined herein shall have the meanings established therefor in the AHA; and
WHEREAS, in connection with the AHA, the Owner has executed and delivered to escrow
the "Agency Note," the "Agency Deed of Trust" and the "Agency Developer CC&R's" all as defined
in the AHA. The Agency Note is to be delivered to Agency prior to or immediately upon the
recordation of this Intercreditor and Subordination Agreement. In addition, the Agency Developer
CC&R's are to be recorded as to the Property among the otlicialland records of the County Recorder
of San Luis Obispo County of even day herewith; and
WHEREAS, Owner has executed, or is about to execute, a deed of trust (the "Lender Deed
of Trust") and note in the sum of Dollars ($ ) (the "Loan Amount")
dated as of , 200_, in favor of Lender, payable by the Owner with interest and upon the
terms and conditions described therein; and
Attachment No. 14
Page 2 of5
DOCSOC\881805v 1 0'\1.2707 .0007
"..._--,-,-,---_.~. 0- -,.-------~
WHEREAS, the parties hereto intend that any lien in favor of Lender under the Lender Deed
of Trust shall be subordinate to the Agency Developer CC&R's excepting only to the extent Section
5 hereof provides to contrary effect; and
WHEREAS, it is a condition precedent to obtaining the loan of the loan amount from Lender
that the Lender Deed of Trust shall unconditionally be a lien or charge upon the Property prior and
superior to the lien or charge of the Agency Deed of Trust, notwithstanding that the Lender Deed
of Trust shall be junior and subordinate to the Agency Developer CC&R's, excepting only to the
extent Section 5 hereof provides to contrary effect; and
WHEREAS, Lender is willing to make said loan provided the Lender Deed of Trust securing
the same is a lien or charge upon the Property prior and superior to the lien or charge of the Agency
Deed of Trust and provided that Beneficiary will specifically and unconditionally subordinate the
lien or charge of the Agency Deed of Trust to the lien or charge of the Lender Deed of Trust and
further provided that the Agency will agree to the provisions of Section 5 of this Intercreditor and
Subordination Agreement; and
WHEREAS, it is to the mutual benefit of the parties hereto that Lender make such loan to
Owner, and Beneficiary is willing that the Lender Deed of Trust securing the same shall, when
recorded, constitute a lien or charge upon the Property which is unconditionally prior and superior to
the lien or charge of the Agency Deed of Trust;
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto
and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged and in
order to induce Lender to make the loan above referred to, it is hereby declared, understood, and
agreed as follows:
1. That the Lender Deed of Trust shall unconditionally be a lien or charge on the Property prior
and superior to the lien or charge of the Agency Deed of Trust;
2. That Lender would not make its loan above described without this Intercreditor and
Subordination Agreement;
3. The Lender Deed of Trust shall be junior and subordinate to the Agency CC&R's, however,
that subject to the notice and cure rights of the Agency as a junior creditor under applicable laws and
those rights of Agency under Section 5 hereof, in the event the Lender acquires the Property directly
by foreclosure or deed in lieu of foreclosure (but not otherwise), the subsequent purchaser and all
successors (but excluding from the effect of the following exception the Owner, the "Principals" [as
defined in the AHA] or any person having any financial interest in the Developer or the Principals)
will accede to the rights of the Developer under the AHA with the exception that the requirements for
affordability and for limiting of incomes of occupants under the Agency Developer CC&Rs;
4. In the event of a mortgage or deed of trust default or breach by the Developer whether prior
to or after the completion of the construction of any of the "Improvements" (as defined in the AHA)
or any part thereof (continuing until the expiration of the term of the Required Covenant Period),
Developer shall immediately deliver to Agency a copy of any mortgage holder's notice of default. If
the holder of any mortgage or deed of trust has not exercised its option to construct, the Agency shall
have the right but no obligation to cure the default. In such event, the Agency shall be entitled to
Attachment No. 14
Page 3 of5
DOCS0C\881805v 1 O\l2707 .0007
.-._-,---_._--~-- .__._~.~---_._---~"-,,.
reimbursement ftom the Developer of all proper costs and expenses incurred by the Agency in curing
such default.
In addition, the Developer and the Lender agree that in the event Lender acquires the
Development by exercise of foreclosure or assignment in lieu of foreclosure or otherwise, Lender
shall so notify the Agency and the Agency shall have not less than sixty (60) days following receipt
by Agency of such notice (given in the manner described in Section 8.2 of the AHA) to purchase the
interests of such lender in the Development (including the corresponding loan for an amount equal to
the outstanding balance of the corresponding loan). The Developer agrees to provide documentation
evidencing the relinquishment of any and all rights to the Development in such event; provided that
the failure to provide such documentation shall not be construed to mean that the Developer retains
any rights under the AHA.
5. Beneficiary declares, agrees, and acknowledges that:
5.1 It intentionally and unconditionally waives, relinquishes, and subordinates the lien or
charge of the Agency Deed of Trust in favor of the lien or charge upon said Property of the Lender
Deed of Trust, and understands that in reliance upon, and in consideration of, this waiver,
relinquishment and subordination specific loans and advances are being made and, as part and parcel
thereof, specific monetary and other obligations are being and will be entered into which would not
be made or entered into but for said reliance upon this waiver, relinquishment and subordination; and
5.2 An endorsement has been or shall be placed upon the note secured by the Agency
Deed of Trust that the Agency Deed of Trust has by this instrument been subordinated to the lien or
charge of the Lender Deed of Trust.
"OWNER"
COURTLAND-ARROYO GRANDE, L.P.
(a California limited partnership)
By: Foundation for Affordable Housing, Inc.
a California Corporation
(Its: General Partner)
By:
Thomas E. Willard
Its: President
By: MFP A, Inc.
a California Corporation
(Its: General Partner)
By:
Sean Clark
Its: Vice-President
Attachment No. 14
Page 4 of5
DOCS0C\881805vl 0\22707 .0007
----~
"LENDER"
WELLS FARGO BANK, NT & SA
By:
Name:
Its:
By:
Name:
Its:
"BENEFICIARY"
ARROYO GRANDE REDEVELOPMENT
AGENCY, a public body corporate and politic
By:
Steven Adams
Its: Executive Direc,tor
ATTEST:
Kelly Wetmore. Secretary
Attachment No. 14
Page 5 of5
DOCSOC\88180Svl 0\1.2707 .0007
,",,-~.----,----,~-------~.,. ~--- ..------'--
EXHmIT A
LEGAL DESCRIPTION
[TO COME]
Exhibit "A" - Attachment No. 14
Page 1 of 1
DOCS0C\881805vl 0\22707 .0007
'-_'.~~--.._-_."~-_.'_--'---_._>-'----~'..- -. ----- ._.....-__...._~.. .dC
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN LUIS OBISPO )
On , before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
,
D personally known to me
-or-
D 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 hislher/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
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
o Individual
o Corporate Officer
Title(s) Title Or Type Of Document
o Partner(s) o Limited
0 General
o Attorney-In-Fact
o Trustee(s) Number Of Pages
o Guardian/Conservator
o Other:
Signer is representing: Date Of Document
Name OfPerson(s) Or Entity(ies)
Signer(s) Other Than Named Above
DOCS0C\881805v I 0\1.2707.0007
__M__'.'_~_M_ - -~-~-~
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN LUIS OBISPO )
On , before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
,
0 personally known to me
-or-
0 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 hislher/their
authorized capacity(ies), and that by hislher/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
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
ftaudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
o Individual
o Corporate Officer
Title(s) Title Or Type Of Document
o Partner(s) o Limited
0 General
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o Other:
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DOCS0C\881805v I O'il2707 .0007
._ _____ __~"_m_.__._'_____ ._-----
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN LUIS OBISPO )
On , before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
,
0 personally known to me
-or-
0 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 hislher/their
authorized capacity(ies), and that by hislher/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
OPTIONAL
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ftaudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
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DOCSOC\881805vl 0'll2707 .0007
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Table of Contents
Page
1. DEFINITIONS AND INTERPRETATION.. .......................... ............... ............................... .... 2
1.1 Defined Tenns........................ ..................... .......................... .............. ........... ..... ..........2
1.2 Singular and Plural Tenns......................... ........................... ................ ............ ........... 10
1.3 References and Other Tenns .......................................................................................1 0
1.4 Exhibits Incorporated.......... ..................... ............................. ............... ...... ................. 10
1.5 The Redevelopment Plan..... ...................... ......................... ................. ....................... 10
1.6 Representations and Warranties. ............. ......................... ................... ............. ........... 10
1.7 Retention of Certain Moneys by Agency........:........................................................... 12
2. DISPOSITION OF THE SITE ................................................................................................12
2.1 Acquisition ofthe Site; Obligation to Develop and Operate....................................... 12
2.2 Developer Payments................................ .................................................................... 13
3. THE AGENCY DISBURSEMENT AMOUNT; PAYMENTS UNDER THE
AGENCY NOTE................. ..................... ................................... .............. ................ .............. 13
3.1 Agency's Conditions to Disbursement of the Agency Disbursement
Amount............. ...................... ........................................... ............. ...................... ....... 13
3.2 Agency Disbursement Amount ...................................................................................15
3.3 Agency Note; Detennination of Certain Matters ...... .............. ............. ....... ................ 15
4. SCOPE OF DEVELOPMENT; INSURANCE AND INDEMNITY,
FINANCING ......................... ........................ ....................... ......... .................... ...................... 15
4.1 Scope of Development .................. .............................. ............. .............. ..................... 15
4.2 Design Review. ...........................................................................................................16
4.3 Time of Perfonnance; Progress Reports..... ..................... ............. .............................. 16
4.4 Cost of Construction. ........ ............. .............................. .............. ................................. 17
4.5 Insurance Requirements.... .................. .................................. .............. ..... .... .... ........... 17
4.6 Obligation to Repair and Restore Damage Due to Casualty .......................................18
4.7 Indemnity ..................... ... ................ ........... ............... ............... .............. ..................... 19
4.8 Rights of Access ....................................... ........................... ................................ ........20
4.9 Compliance With Laws.... ............................................... ....................................... ..... 20
4.10 Nondiscrimination in Employment..... ............................................... ...... ...................20
4.11 Taxes and Assessments ................ .................................... ......... ......... .........................20
4.12 Liens and Stop Notices...... ................. ............. ........................ .................... ................ 20
4.13 Certificate of Completion.......... ...................................... .............. ..............................21
4.14 Further Assurances............ ................ ............. ....... ..... .............. ................................ ... 21
4.15 Financing of the Improvements.................... ..................... ............. ..................... ........21
4.16 Mechanics of Disbursement of Agency Disbursement Amount. ................................26
4.17 Establishment and Maintenance of Accounts .............................................................26
5. COVENANTS AND RESTRICTIONS .................... ...................... ............................... .........27
5.1 Use Covenants............................. ..... ................................ ............ ............ ................... 27
5.2 Affordable Housing Requirements... .......................... ............................ .......... ...........27
5.3 Verifications. . ............................ ................ .... .................... ........... ............................... 29
5.4 Maintenance of Site............ .............. ....................................... ....................... .............29
5.5 Nondiscrimination Covenants .................... .... .................... ........... ..............................29
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DOCS0C\88180Sv 1 O\l2707 .0007
-- - ..-",_._,.,,,~,.,,
Table of Contents
(continued)
Page
5.6 Effect of Violation of the Terms and Provisions of this Agreement
After Completion of Construction................................. ..............................................30
6. DEVEWPER'S GENERAL REPRESENTATIONS AND WARRANTIES. .......................31
6.1 Formation, Qualification and Compliance .................................................................. 31
6.2 Execution and Performance of Project Documents..................................................... 31
6.3 Covenant Not to Transfer Except in Conformity ........................................................31
7. DEF AUL TS, REMEDIES, AND TERMINATION..... ............................... ...................... ......32
7.1 Default Remedies............. .................... ............... ................................... .....................32
7.2 Institution of Legal Actions................... ............ ..................... ............................... ......32
7.3 Termination by the Developer................. .............................. .............................. ........32
7.4 Termination by Agency ....................................................... ........................................33
7.5 Acceptance of Service of Process ................................................ ...............................33
7.6 Rights and Remedies Are Cumulative ........................................................................33
7.7 Inaction Not a Waiver of Default................................ ................................ ................33
7.8 Applicable Law ................................ ...................................... .................. ...................33
7.9 [Intentionally Omitted] ....................... ............... ...... ....................................................33
7.10 Enforced Delay; Extension of Times of Performance ................................................ 33
7.11 Limitation Upon Transfer...................... ............................. ........... ..............................34
7.12 Non-Liability of Officials and Employees of Agency ................................................35
7.13 Relationship Between Agency and Developer............................................................35
7.14 Agency and City Approvals and Actions....................................................................36
7.15 Real Estate Brokers ............... ......................... .................. ....................... .................... 36
7.16 Attorneys' Fees ............................ ................................. ............ ..................................36
8. MISCELLANEOUS. .......................... ...................... ....................... ............. ..................... ......36
8.1 Obligations Unconditional and Independent............................................................... 36
8.2 Notices................... ...................................................................................................... 36
8.3 Survival of Representations and Warranties ........ ........................................... ............ 37
8.4 No Third Parties Benefited Except for City ................................................................37
8.5 Binding Effect; Assignment of Obligations....................... .................... .....................37
8.6 Counterparts................................................................................................................ 37
8.7 Prior Agreements; Amendments; Consents ................................................................37
8.8 Governing Law ............................................................................................. ............... 38
8.9 Severability of Provisions..... .... ........................................ ........... ........................ .......38
8.10 Headings................... ......................... .......................... .............. ........................ ...........38
8.11 Conflicts.... ..... ........ ............... ................... .......................... ............. .................... ........38
8.12 Time of the Essence. ...................... ............................... .............. ................................38
8.13 Conflict of Interest............. ................... ................ ................ ............................. .........38
8.14 Warranty Against Payment of Consideration.................... .................................... ...... 38
8.15 Nonliability of Agency Officials and Employees .......................................................38
ii
DOCSOC\881805v 1 O'V.2707 .0007
Table of Contents
ATTACHMENTS
ATTACHMENT NO. 1 SITE MAP
ATTACHMENT NO.2 LEGAL DESCRIPTION OF THE SITE
ATTACHMENT NO.3 SCHEDULE OF PERFORMANCE
ATTACHMENT NO. 4 CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
ATTACHMENT NO.5 CALCULATION OF AFFORDABLE RENTS
ATTACHMENT NO. 6 REQUEST FOR NOTICE OF DEFAULT
ATTACHMENT NO.7 SCOPE OF DEVELOPMENT
ATTACHMENT NO.8 CERTIFICATE OF COMPLETION
ATTACHMENT NO. 9 AGENCY DEVELOPER CC&RS
ATTACHMENT NO. 10 INCOME VERIFICA nON
ATTACHMENT NO. 11 AGENCY NOTE
ATTACHMENT NO. 12 AGENCY DEED OF TRUST
ATTACHMENT NO. 13 MEMORANDUM OF AGREEMENT
ATTACHMENT NO. 14 INTER-CREDITOR AND SUBORDINATION AGREEMENT
iii
DOCS0C\88180Sv 1 0\22707 .0007
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11.c.
MEMORANDUM
TO: CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGERfr
SUBJECT: CONSIDERATION OF INVITATION FROM THE CITY OF
GROVER BEACH TO PARTICIPATE IN A ONE-DAY JOINT
MEETING REGARDING POTENTIAL CONSOLIDATION OF
POLICE SERVICES
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council review the invitation received from the City of
Grover Beach to participate in a facilitated joint City Council meeting to
investigate interest in consolidation of Police services and provide direction to
staff.
FUNDING:
The City of Grover Beach has proposed to pay all costs associated with the
proposed meeting. Therefore, there is no initial cost to the City for participation
in the process. If as a result of the meeting, the cities agree to continue to
prepare a feasibility study, the City would be expected to share in the expenses.
However, these costs have not been estimated at this time.
DISCUSSION:
In response to action taken by the Grover Beach City Council at their meeting
held on November 3, 2003, the Mayors of Arroyo Grande and Pismo Beach
recently received an invitation from the Mayor of Grover Beach to participate in a
one-day facilitated workshop on the issue of consolidation of Police services.
They have agreed to host the workshop, including expenses associated with
providing the facilitator. A copy of the letter of invitation and a report they have
provided from the International Association of Chiefs of Police (lACP) entitled
"Consolidating Police Services" are attached.
As part of the Police Department's work program for FY 2003-04, staff has been
coordinating with the Cities of Pismo Beach and Grover Beach in studying the
potential for providing joint Police dispatch services. It is our understanding that
the workshop would involve discussions regarding this concept, as well as full
consolidation. The report attached outlines specific issues that would be
S:\CITY MANAGER\STEVE\Council Reports\12.9.03 Grover Beach Police Consolidation Invite.doc
CITY COUNCIL
JOINT CITIES MEETING REGARDING POLICE CONSOLIDATION
DECEMBER 9, 2003
PAGE 2
addressed at the proposed meeting. Staff believes that such an effort could
result in long-term cost savings, but would also involve a number of complex
issues. Therefore, staff supports the study of options to improve efficiency, but
believes a number of issues would need to be studied and addressed before we
would recommend any position on potential consolidation.
AL TERNA TIVES:
The following alternatives are provided for the Council's consideration:
- Direct staff to accept the invitation and work with the City of Grover
Beach to schedule the joint meeting;
- Direct staff to accept the invitation, but request modifications from
the City of Grover Beach regarding the format and/or content of the
meeting;
- Direct staff to decline the invitation from the City of Grover Beach;
- Provide direction to staff.
Attachments:
1. Letter from Grover Beach Mayor Ronald Arnoldsen regarding the
proposed joint City Council meeting
2. IACP Report on Consolidation Police Services
-_.-_.---
-_.__."._~_."'-
. '
City of Grover Beach
Mayor Ronald P. Arnoldsen Mayor Pro Tem Dee Santos
Council Member David Ekbom, Council Member Stephen C. Lieberman, Council Member John P. Shoals
Ronald C. Anderson, Jr.
City Manager November 6, 2003
Mayor Joe Crescione / Mayor Tony Ferrara
City of Pismo Beach City of Arroyo Grande
760 Mattie Road Post Office Box 550
Pismo Beach, CA 93449 Arroyo Grande, CA 93421
Subject: Proposed Facilitated Joint City Council Meeting to Investigate Interest
in Consolidation of Police Services
Dear Mayors Crescione and Ferrara:
At the City Council meeting of November 3, 2003, the City Council discussed the
concept of conducting a facilitated workshop on the issue of consolidation of police
services in the Five Cities area. Attached for your information is a copy of a report on
this concept, which was produced by the International Association of Chiefs of Police
(IACP). The consensus was to invite the City Council Members from Pismo Beach and
Arroyo Grande to participate in the proposed workshop.
The City of Grover Beach would be honored to host such a workshop, including the
costs associated with providing the facilitator. City staff was directed to select a
facilitator with experience working with public agencies to consolidate police services,
but to avoid selecting a facilitator who may have worked on any previous unsuccessful
attempts in the Five Cities area. The Council also indicated its preference for a
facilitator recommended by the IACP.
Should you have any questions or concerns, please feel free to contact City Manager
Ron Anderson at 473-4567. We look forward to hearing from you!
Sincerely, "
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RONALD P. AR --l :::t.~ 1:-)
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154 South Eighth Street .:. Grover Beach, California 93433 .:. FAX (805) 489-9657 .:. www.grove~rgf~
Finance/Water (805) 473-4550.:. Community Development (805) 473-4520 .:. Parks and Recreation (805) 473-4580
City Council/City Manager (805) 473-4567 + City Clerk (805) 473-4568 .:. Human Resources (805) 473-4564
Police Administration (805) 473-4511 .:. Fire Administration (805) 473-4590
/ NOTICE OF SPECIAL MEETING OF THE GROVER BEACH CITY COUNCIL
A Special Meeting of the City Council of the City of Grover Beach is hereby called for
November 3. 2003 immediately following the Regular Meeting on this same date at Grover
Beach City Hall, 154 S. ffh Street, Grover Beach, California to consider the matters set forth in
the attached Special Meeting Agenda.
Is!
RONALD P. ARNOLDSEN, MA YOR
SPECIAL MEETING AGENDA
GROVER BEACH CITY COUNCIL
GROVER BEACH CITY HALL COUNCIL CHAMBERS
154 S. 8th STREET
- GROVER BEACH, CA .
MONDAY, NOVEMBER 3,2003
(Meeting Begins Immediately Following the
Regular City Council Meeting Scheduled at 6:30 p.m. on this date)
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in a City
meeting, please contact the City Clerk's Office (473-4568) at least 48 hours prior to the meeting to ensure that
reasonable arrangements can be made to provide accessibility to the meeting.
CALL TO ORDER
ROLL CALL City Council: Council Members Ekboni, Lieberman, Shoals,
Mayor Pro Tern Santos, and Mayor Arnoldsen.
PUBLIC COMMUNICATIONS Any member of the public may address the Council for a period not to
exceed three minutes total on any item described in this Agenda. The Council will listen to all communications;
however, in compliance with the Brown Act, the Council cannot act on items not on the agenda.
BUSINESS
1. Consolidation of Police Servic~s. The City Council will discuss the concept of a
facilitated workshop with other impacted agencies on consolidation of police services
in the Five Cities Area.
Recommended Action: Provide direction to staff.
ADJOURNMENT
*****
Copies of Staff Reports or other written materials relating to each item of business referred to on this agenda
are on file in the City Clerk's Office and are available for public inspection and reproduction. This agenda is
subject to amendment up to 24 hours prior to the date and time set for the meeting. Please refer to the agenda
posted at City Hall for any revisions or call the City Clerk's Office at (805) 473-4568 for more information.
c: Mayor and City Council
Commissions & Committee Members
City Manager; City Attorney
Department Directors
Media - Times Press Recorder & The Tribune
Post (City Hall and Post Office)
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, May 2003
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This project was supported by Grant Number 97~DD-BX-0043, awarded by the Bureau
of Justice Assistance, U. S. Department of Justice.
Points of view in this document are those of the IACP and do not necessarily represent
the official position or policies of the U.S. Department of Justice.
SINCI! 1m
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. Consolldatina Police Services: An IACP Plannina ADDroach Executive Brief
.
.
.
. Over the past several years, IACP, in collaboration with the U.S. Department of Justice,
. Office of Justice Programs, Bureau of Justice Assistance, has created a "Services,
. Support and Technical Assistance Project for Smaller Police Agencies." Through the
. generous funding of BJA, we have been able to provide both educational documents
and direct technical assistance to a large number of agencies. In the course of this
. project, while responding to requests for direct support on police consolidation, we were
~ able to design a unique planning approach that has now proven successful in several
') pilot jurisdictions. We are indebted to BJA for its support of the IACP and this project.
" Without that support, the design and development of this consolidation-planning model
would not have been possible.
~
~ We are also grateful to the cities of Sparta and Tomah, Wisconsin, and the City of
!) Belvedere and the County of Boone, Illinois, for seeking our help with consolidation,
~ motivating us to design this planning approach, and allowing us to pilot it in their
communities. The majority of ,insights and approaches outlined in this Executive Brief
~ were developed by governing body and law enforcement decision makers in each of
~ these jurisdictions. Their thoughtful approach to consolidation within our retreat context
.- was invaluable to the creation of this policy/planning document.
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. I. Introduction... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ............ ...... ... ...... ... ... .., ... ... ... .....1
0 Types of consolidation
. 0 Preconceptions about consolidation
.
. II. Evaluating Consolidation Potentials: An IACP Planning Model........................... 4
. A. Initial One-Day Retrea~: Exploring the Potential of Consolidation
. 0 Design of the IACP retreat model
. 0 Retreat goals
. 0 Key retreat components
0 Retreat breakout group topics
. 0 Retreat keynote speakers: lessons from consolidated jurisdictions
. 0 Concerns of retreat participants
. B. Comprehensive Feasability Study: Detailed Exploration of All Consolidation Issues
. 0 Stakeholders roundtable
. 0 Resolving all consolidation issues: assessment phase
. 0 Phased transition plan
. 0 Evaluation and adjustment
, III. Conclusion............................................................................................. .15
,
, IV. Project Staff and Consultants... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... '.' ... ... ...16
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.
I The idea of consolidating law enforcement services continues to interest many police
I and sheriffs' departments. We present here some expectations from proponents and
I opponents of consolidation. Consolidation can be an appealing idea for many reasons,
, particularly to smaller agencies and their governing bodies. Jurisdictions undertaking
consolidation activities may anticipate an outcome that will produce a higher volume of
I police services, lower response time, reduce overtime, duplication of effort, and lower
I overall operating costs. Consolidation proponents also assume increased agency
. status, resources, and capacity. The quality of policing is expected to rise under
, consolidation as a result of more efficient and coordinated use of manpower, more
flexibility to meet hours of peak demand, enhanced training opportunities, and improved
, management and supervision. Consolidation is especially attractive to city and county
. decision makers in regions with numerous smaller police agencies, where fragmentation
, or redundancy in policing may be present and where fiscal challenges exist.
, Opponents of consolidation fear the loss of community independence, and reduced
~ oversight and supervision of a consolidated agency spanning ,several towns or cities.
, Opponents also assume that the personal nature of policing in their community will be
~ lost, that response times may not be lowered, and that costs to the smaller community
may increase. Expectations versus the actual reality of consolidation outcomes may
, vary greatly depending upon many factors. For this reason, we recommend that
, communities interested in pursuing consolidation consider using the following evaluation
, tools in an effort to thoroughly investigate the matter prior to making any decision.
~ Since the 1950s, many forms of consolidation have occurred in communities ranging
~ from small towns to large cities. Some of .the more substantial consolidations involve
~ larger cities: the Los Angeles County Sheriffs Department began contract services to
~ the adjoining city of Lakewood as early as 1954. The Las Vegas, Nevada, Police
Department and the Clark County Sheriffs Department went further, joining forces to
, establish the Las Vegas Metropolitan Police Department in 1973. Similarly, in 1957 13
, separate Canadian police agencies varying in size from 13 to 1,400 personnel merged
, to create the Metropolitan Toronto Police Force. In Florida, the city of Jacksonville and
Duval County went so far as to totally combine their governments to form a single
, agency under the name, the City of Jacksonville in 1968. More recently, in 1993 the city
, of Charlotte, North Carolina, combined with the Mecklenburg County Sheriffs
, Department to create the Charlotte-Mecklenburg Police Department.
, Types Of Consolidation
,
, Consolidation is a matter of degree. Different variations include:
, Functional: Two or more agencies combine certain functional units, such as
.
, emergency communications, dispatch, or records.
,
, . Cross Deputization / Mutual Enforcement Zones / Overlapping Jurisdictions:
, Agencies authorize each other's officers to pool resources and improve regional
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>> Consolidatina Police Services~ An IACP Plannina ADDroach Executive Brief
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) coverage, for example, permitting a city police officer to make arrests in the
county and a sheriffs deputy to make arrests in the city.
.
. . Public Safety: City or county governments may unite all police, fire, and
) emergency medical services agencies under one umbrella.
) . Local Merger: Two separate police agencies form a single new entity. The
. agencies may be in small communities or metropolitan areas.
,
, . Regional: A number of agencies combine to police a geographic area rather
, than a jurisdictional one.
, . Metropolitan: Two or more agencies serving overlapping jurisdictions join forces
, to become one agency serving an entire metropolitan area, as happened in the
, Toronto area.
~ . Government: A city and adjoining county consolidate their entire governments,
~ creating a "metro" form of government for all citizens.
~
, No one form of consolidation is superior to others. The type selected for investigation
depends on the needs, expectations, and degree of cooperation among the
, stakeholders in particular jurisdictions. The most common form of consolidation is
, between smaller county and city police agencies (those serving fewer than 50,000
! populations). There are over 14,000 smaller police departments in the United States --
! some with inadequate operating budgets for personnel -- often limiting community
safety services. Consolidation of any kind may appear to offer countless advantages.
~ Pennsylvania, for example, has more than 1,100 police departments, many with fewer
! than 20 staff, and has established 28 regional police departments by state statute and
, city charter.
, Preconceptions About Consolidation
,
, In any community, almost all stakeholders enter into discussion of consolidation with
preconceptions about the value, if any, of blending agencies; i.e., they have either a
, positive or negative set of expectations. A review of the literature indicates that
~ examples of positive expectations include: a) the consolidated agency may have a
, greater capacity to respond to crime as well as greater efficiency and flexibility; b)
, consolidation can possibly save money; and c) sworn and civilian personnel may have
greater opportunities for advancement.
~
~ Others hold negative preconceptions: a) senior, supervisory, and line officers alike may
. be threatened by consolidation and aggressively resist change; b) consolidation is likely
, to increase costs, particularly because of the start-up costs of reorganization, planning,
and standardizing equipment, and possible need for a new building to house the
, combined agencies; and c) officers in line for promotion or advanced assignment in one
, agency may find they are outranked for these opportunities by their peers in the other
~ agency. Governance of the newly created agency, once consolidation has occurred,
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. Consolidatlna Police Services: An IACP Plannlna ADDroach Executive Brief
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I may well mean: a) loss of control by smaller communities; b) confusion about how and
where complaints are sent; c) loss of personal interaction with local law enforcement;
. and d) fragmented oversight of the newly combined law enforcement agency by local
. community councils and mayors.
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.
. IACP has, in working with various jurisdictions on consolidation, designed a two-phase
j planning approach inctuding an initial one-day intensive retreat for all key decision
. makers. Following the retreat, if there is consensus to take further steps toward
consolidation, a phase-two comprehensive evaluation is undertaken. The following
; describes this two-phased exploration approach: (Note: for this brief, the example of a
. city-county law enforcement agency consolidation has been used. The planning model,
. however, applies to exploring a/l types of partial or comprehensive consolidation.)
. A. Initial One-Day Retreat: Exploring the Potential of Consolidation
.
i All too often, jurisdictions considering consolidation rush into spending thousands of
i dollars to hire consultants to conduct a study and recommend for or against
consolidation. The step most often missed is that of gauging existing local city
, and/or county support for consolidation of any kind. If no consensus to move
, toward consolidation exists, consultant recommendations to consolidate are premature
, and of little value. Jurisdictions must first gauge if law enforcement personnel, local and
~ county officials, and citizens actually want to proceed with consolidation, and generally
view such a step as feasible politically and financially.
~
, To help jurisdictions make preliminary assessments of consolidation potential, the IACP
, has designed a retreat model for key parties to explore the issues and see if there is a
true consensus in favor of consolidation. If, through this retreat model, the parties agree
, to pursue consolidation, a comprehensive feasibility study can be conducted as a next
, step. An initial jurisdictional retreat will determine if key decision makers concur that
, consolidation is a good or bad idea; likewise, the subsequent feasibility study will
, confirm whether consolidation between particular agencies will or will not be cost-
effective.
,
, The use of outside consultants as a first step can make police agencies and
. communities feel that others are determining whether or not to consolidate. By contrast,
the approach discussed here gives agencies a great deal of say in the decision and
, promotes greater consensus for an eventual decision by all concerned.
,
, This retreat approach has proven itself an effective way to examine and' evaluate the
, issues that arise in weighing consolidation. It was followed recently by two towns,
Tomah and Sparta in Wisconsin, that were considering a merger of 911 dispatch and by
, two Illinois jurisdictions, the city of Belvedere and Boone County, interested in exploring
, full consolidation of their law enforcement agencies. In each of the consolidation case
, studies presented here, the consensus was to not pursue consolidation at the time.
However, since then, consolidation has been revisited in each community. Our intent
, here is to provide tools to evaluate the consolidation options and emerge with
, consensus. The choice itself is a matter for the community and it's stakeholders to
, make.
,
,
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. ConsolidatinQ Police Services: An IACP PlanninQ Aooroach Executive Brief
t
J Design of the IACP Retreat Model
t
. A look at how the Belvedere Police Department and the Boone County Sheriff's
, Department went about deciding whether to consolidate can be instructive for other
agencies. With advice and technical assistance from JACP staff, stakeholders from the
, communities of Belvedere and Boone County held a one-day retreat, attended by
, representatives in police protection, including elected officials, senior officers in the
, police and sheriffs departments, line officers, civilians from both departments, and
concerned citizens.
,
.
, Prior ~o the retreat, key stakeholders met and discussed the issues and concerns with
, IACP facilitators. From these exploratory meetings came both a list of pertinent group
. topics to explore and a suggested participant list. Once the participant list was finalized,
, the place and time of the event were determined. Participants were advised that this
. was a meeting to explore (not resolve) issues and that it would be highly interactive.
,
. Space at a local university was secured for the retreat, to avoid any semblance of bias.
;
.
-'
. Retreat Goals
.
. . Inform participants of preliminary information on consolidation to allow them to
. decide if there was sufficient reason to continue dialogue, and to continue to
I study and evaluate the consolidation option.
.
,
. . Identify the issues that need to be resolved to make an informed decision about
,
. consolidation.
-
.
. . Identify the necessary steps that must be taken to successfully accomplish
. planning and implementation of consolidation.
;
.,
., From the outset, it was made clear that more questions than answers would be raised
. at the retreat and that the only consensus to be achieved would be on the interest in,
~ and value of, further analysis of consolidation, if any.
.
.,
, Key Retreat Components
~
.,
.
:I
, '1. Concerns and expectations of participants
2. Facilitator's overview of consolidation issues
, 3. Issues Panel: Two keynote presentations
, 4. Breakout group sessions on the identified issues
~ 5. Report-out from breakout groups and action plan
,
, To promote dialogue between retreat participants, four breakout groups were selected.
J These groups outlined the major topical concerns determined earlier by the stakeholder
focus groups.
,
. 5
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. Consolldatlna Police Services: An IACP Plannlna ADDroach Executive Brief
.
. Retreat Breakout Group Topics
~
J) 1. Government Issues This group was asked to respond to a series of questions on
. consolidation issues that related specifically to local and county government
responsibilities, such as: a) to whom the newly chosen police chief would report,
. b) how local community governing boards would oversee newly consolidated
!t services, c) how community response to services would be managed (complaint
'J process, etc.), d) how operating costs would be distributed between consolidating
~ communitiesljurisdictions.
- 2. Police Administration This grqup was asked to respond to questions of how a
/
- newly consolidated police agency would be managed and run, and by whom.
-
- 3. Police Dep/ovment This group responded to questions on how officers from the
formerly independent departments would be deployed effectively in a new
- agency configuration.
-
-
~- 4. Public Response This group responded to questions on citizen response to
- consolidation and how citizen involvement could be achieved.
-
-
- Retreat Keynote Speakers: Lessons From Consolidated Jurisdictions
.. Two keynote speakers with personal consolidation experience, representing the
.. perspectives of a police and sheriff's department respectively, were selected by IACP to
-
... open up the retreat. Undersheriff John Gordon of the Jacksonville, Florida, Sheriffs
~ Office had experienced consolidation as a patrol officer. Dermis Nowicki, then Chief of
the Charlotte-Mecklenburg Police Department, had directed the consolidation of the city
... and county law enforcement agencies.
~
..
.. Both keynote speakers stressed important lessons learned from their experience of
J consolidation. Chief Nowicki of the Charlotte-Mecklenburg Police Department was
.. brought in from Chicago to oversee the new consolidation effort. The city and county felt
J
.. that new, independent leadership would help ease the transition. He described how the
~
.. communities of Charlotte and Mecklenburg County had gone through a well-designed
- planning and implementation process over a number of years, eventually consolidating
~
- in 1994.
~
~ Chief Nowicki described how both community governments strongly supported the
- merger. He believes that without across-the-board support, consolidation would have
~ failed. Citizens' input was sought early on. The majority of citizens in the city and
~ county viewed consolidation as an effective way to provide law enforcement services.
~ While there was some initial resistance to consolidation by law enforcement officers in
~ both departments, ultimately they acclimated to the new agency. Upon arrival, Nowicki
designed and carried out a survey of all officers. He asked for their concerns and
~ advice, and invited those who cited serious concerns into his office to talk.
~
~
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. Consolidatina Police Services: An IACP Plannina ADDroach Executive Brief
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. Under Chief Nowicki, the new department adopted a community-oriented policing
, model. This philosophy served as a foundation for change and growth within the new
. agency.
I Sheriff Gordon, who was a city patrol officer in 1968 when consolidation occurred in
, Jacksonville, Florida, said that the process of consolidation and, adjustment to this
~ process, takes many years. He made it clear that creating a new agency causes
~ officers great difficulties in the shedding of their old identity and assignments for new
. ones. He mentioned that several holdout officers who never fully accepted consolidation
-' left the department through general attrition or retirement.
.
. Gordon stressed that police leaders, officers, civilian employees, and citizens all need
. substantial time to adjust to consolidation. Early resistance tends to give way to
, acceptance only with time and experience. But after the growing pains, he said,
.
~ consolidation proved to be a more efficient and harmonious approach to law
. enforcement.
-
.
-
.
- Concerns of Retreat Participants
.
. After opening keynote presentations, each retreat participant was given an opportunity
. to voice what they believed were the key concerns that needed to be addressed in
. considering consolidation. The following are examples of the concerns raised by
" Belvedere and Boone County stakeholders:
.
,-
. General Concerns
-
.
- . How would a cost-benefit analysis be carried out? How have consolidations
. fared in such analyses?
-
~ . Would the new agency move in a new direction philosophically? Should it?
~ . Would consolidation affect the rest of the criminal justice system? How?
. . Would consolidation respond to the growth of the city, county and region?
# What would happen to the sheriffs office, as they knew it?
.
.
.. . What would happen to the police department, as they knew it?
..
..
lit Political Concerns
-
lit
.# Who would make the, key decisions about the consolidation process?
.
~ . How could the process be designed to ensure that stakeholders have a role in
, decision-making?
~ Operational Concerns
~
~ . Would the quality of service provided residents rise or fall?
~ . Would consolidation lead to duplication of services?
~
~
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I Consolldatina Police Services: An IACP PlanninQ ADDroach Executive Brief
,
. Administrative Concerns
,
, . Would the sheriff head the agency with the chief as his deputy, or vice versa?
, . How have other consolidated agencies arrived at an equitable management plan
. for the new agency?
, Financial Concerns
.
.:i
. . Would consolidation cause taxpayer costs to increase or decrease?
:J Would hidden costs make consolidation more expensive than expected?
.
.
J . Is consolidation generally viewed as a best use of tax dollars?
~ . How could stakeholders manage funds in a way that balances public safety and
. spending concerns?
j
.
" Personnel Concerns
~
a Would the seniority and job assignments of officers and civilian employees be
~ .
a protected?
~
~ . Would promotional opportunities increase or decrease?
a
; Legal Concerns
.
I
~ . What contractual issues would arise when two distinct agencies combine?
I
~ . What other legal issues would arise?
~ These questions were used as a framework for breakout group discussions at the
"
~ retreat. Breakout groups were balanced, all of them populated by members of both
, county and city law enforcement. After breakouts had done their work, a spokesperson
, for each group reported out on their concerns and final opinion. In the case of Boone
County and Belvedere, there was a clear consensus that participants saw sufficient
, potential in consolidation to proceed with a second step: a comprehensive feasibility
, study.
I) B. Comprehensive Feasibility Study: Detailed Exploration of All Consolidation
~ Issues
')
~ Once jurisdictions arrive at consensus to proceed beyond a retreat's preliminary
~ discussions to a formal feasibility study, then a series of additional steps is called for.
These planning and implementation steps are all part of a complete feasibility study.
, The issues and concerns raised at the one-day retreat serve as the foundation for all
, subsequent investigation:
} 1. Roundtable discussions with key stakeholders
~ 2. Retention of consultants to conduct an assessment of all aspects of consolidation
~ 3. Development of a phased transition plan to create the new entity, if recommended
~ 4. Design of an evaluation plan to determine the level success of consolidation, if
) chosen, and make adjustments as necessary
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, Consolidatina Police Services: An IACP Plannlna ADDroach Executive Brief
.,
I) Stakeholder Roundtables
~
, The IACP planning model calls for a series of post-retreat roundtable discussions for
I) key stakeholders to further assess the concerns of employees and citizens.
! . Emp/ovees The attitudes and perceptions of sworn officers and civilian
. employees must be determined. Support for the consolidation plan must be
4'
. attainable, if it is not already in place.
~
.
. Labor Unions If one union represents officers in the departments contemplating
. merger, planning is easier. If two or more unions exist, they may be concerned
. about their future, their influence in policy decisions, and the job security of their
. members. These issues must be resolved early on.
.
. The Public While a public referendum may not be necessary, officials in the
. consolidating jurisdictions must have sufficient evidence that a majority of citizens
-
. are aware of a consolidation plan and accept it. This may be accomplished
. through a citizen survey, public forums, or focus groups.
. Resolving all Consolidation Issues: Assessment Phase
.
. Once all participating parties agree that a formal feasibility study should be pursued, it
. should be funded and undertaken by a professional organization or by appropriate
, representatives of the jurisdictions themselves. Some of the many issues that a
. feasibility study should address are discussed below. Where relevant, examples of
.
.. findings and recommendations, overall benefits and deficits of consolidation determined
. by the Belvedere-Boone retreat breakout groups have been added as examples of what
..
~ the funded assessment must resolve.
.
..
. 1. Departmental Values and Traditions
I
..
, Perceived Identities: Departments typically have very strong identities. Officers
~ .
and staff take a great deal of comfort in these identities. Consolidation
~ activities must allow for an understanding of this ,initial loss of identity, and
~ suggest timeframes for officers to adopt and adjust to the new agency's
~ identity.
, . Philosophy: No two departments share an identical law enforcement
, philosophy. While crime prevention and response are givens, one department
, may focus on special programs and initiatives, while another may have a
, single community-oriented, problem-solving approach. The new agency must
blend these into one overarching agency philosophy.
~
~ . Cultures: Law enforcement agencies develop unique cultures: department-
~ wide perspectives, attitudes, and informal coping mechanisms. The culture of
, each department must be assessed and respected during the consolidation
study. It is reasonable to expect that each department's personnel will
,
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I Consolidatina Police Services: An IACP ~Iannina Approach Executive Brief
,
, maintain a core of identity elements while relinquishing others to effectively
~ assume the identity and culture of the new agency.
.,
, 2. Legal Issues
, . Statutory Issues: How will city, county, and state statutes support or limit the
. consolidation plan?
.J
.
.J Legal Evaluation: Who will be responsible for evaluating and resolving legal
. .
.J issues of agency dissolution and redesign? What must be done to satisfy all legal
.
J requirements?
.
J
. 3. Government and Funding Issues
a Cost-Benefit Analysis: An assessment of total costs, both short and long range,
.
a and a formula to estimate and allocate those funds must be developed. Are there
. hidden costs? What are they? Will the transitional investment upfront costs be
. outweighed by the long-term cost benefits?
. Belvedere-Boone Breakout Group Recommendations: The feasibility study
. would need to identify cu"entcosts, including direct and indirect costs and
. benefit packages. The funding level of the new agency needs to be studied.
. Short-term costs might increase, notably infrastructure, but long-term costs
might decrease. Alternative revenue sources can be sought to fund the neW
. agency, such as passage of a public safety levy by referendum or creation of
. a general reserve fund.
.
. Funding and Shared Costs: How will revenue acquisition change? Who will
. receive these revenues? Will levels of revenue change? How? How will costs
Ii. of the new department be shared by the two jurisdictions: Will they be prorated?
!
~ Split evenly? Who will decide?
~ Boone-Belvedere Breakout Group Recommendations: Both the city and
, county already have authority to receive and spend monies, so there is no
~ need for new authority. A 50-50 split of the new department's cost would be
~ the most reasonable, since the department would serve all city and county
residents equally.
~
, . City and County Practices: Consolidation could cause significant changes in
~ programmatic, revenue, and funding practices in both jurisdictions. These
, changes must be planned for early on.
) . Management: Who would manage the new agency? How would the command
~ structure be set up? How could it accommodate the expectations of officers from
~ both former departments?
,
)
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. ConsolidatinQ Police Services: An IACP PlanninQ Approach Executive Brief
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. Belvf)dere-Boone Breakout Group Recommendations: State statutes would
. dictate that the sheriff head the new agency; a position of.undersheriff could
. be created for the chief. Other options are worth considering, but this would
. be the simplest approach.
. . Salaries, Benefits, Promotions: Salaries, benefits, and promotion protocols
~ would need to be standardized so that all officers are assured of consistent
. treatment.
.
-~ Belvedere-Boone Breakout Group Recommendations: Salaries and
. benefits should be brought up to the higher of the two agency's levels.
~ The added costs could be split 50-50 between the city and county.
~
. Perceived. Benefits and Drawbacks of Consolidation: Benefits may include an
. increased level of service, more officers in the field, greater efficiency, reduced
.. direct and indirect costs, increased training and promotional opportunities.
. Liabilities would include loss of control by individual agency leaders, increased
--
. legal liabilities for both former departments, tension between officers from both
-- former departments, and resistance to change by officers, civilian employees,
.. and possibly the communities themselves.
.
~, 4. Operational Issues
..
. Deployment: How will officers be deployed? How will patrol sectors or districts
.
.. be designed? How will patrol allocation per shift and sector be determined? How
_J
.. will preliminary deployment decisions be evaluated after implementation?
..
.. Belvedere-Boone Breakout Group Recommendations: At least the same
number of patrol officers now on duty in each department should be
~ maintained. Detective staffing levels should be decided by the new agency
. leadership.
.~
~ Special Units: Most departments have a number of special units that target
.
I! drugs, homicide, gangs, etc. If both agencies had the same units, how would this
.- be resolved to the satisfaction of unit personnel?
-'!'
tIj
- Logos. and Patches: New logos for cruisers, new patches, and new uniforms
~ .
would be an urgent issue, since they would send a visible signal that the former
Jj agencies are gone, and the new agency has its own unique identity.
,
-- . Training and Educational Standardization: All future training and educational
J.) requirements would have to be standardized. Each officer in the new agency
must have access to and participate in requisite training and educational courses.
~ These courses must be identical for all officers.
e
- Belvedere-Boone Breakout Group Recommendations: Consolidation
~
would be an opportunity to revamp existing FTO programs for new
~
~ 11
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. Consolidatlna Police Services: An IACP Plannina Approach Executive Brief
~
. officers, while giving veteran officers reorientation. Variations in city
~
. ordinances and county codes would be an issue. Making consolidation a
"
. win-win situation would be feasible, but it would require officers being
I
I! open to change.
. Procedures, Policies, and Protocols: All new agency procedures, policies, and
. .
. protocols, must be in place and personnel trained on them before consolidation
-
. occurs. In this process, there would be opportunities to blend the best of prior
. agency policies into the new, and to improve and update all policies.
. Belvedere-Boone Breakout Group Recommendations: There should be a
. thorough evaluation of existing policies, procedures and protocols and
. improvements of those found to be weak. Sufficient time, money, and
. effort must be put into this critical task to make all necessary changes.
The chosen policing philosophy should be incorporated into all policies,
. procedures, and protocols at the outset.
.
.. . Perceived Benefits and Drawbacks of Consolidation: Operationally, several
.. anticipated drawbacks of consolidation might include: (1) difficulty adapting to a
new configuration, (2) shift changes, (3) revision of patrol areas, (4) adjustments
.. to rank structure, (5) potential reduction of patrol strength in either the city or the
.. county. Operational benefits might include: (1) enhanced knowledge and skills of
.. the two blended departments, (2) the new agency's flexibility in responding to
community needs, (3) additional resources available to meet community needs,
.. and (4) improved communication among officers.
..
.. Belvedere-Boone Breakout Group Recommendations: There would be
.' gains for the county, but losses for the city in overall seNice, unless the
.. total number of officers waS increased. There would be significant start-up
.. costs, and it might take many years to recoup them.
JIll.
/ 5. Facility Issues
..
,
JIll. Evaluation of the age, condition, location, and operational efficiency of the
- .
.. existing sheriffs department facility, as well as age, condition, location and
-
",. operational efficiency of the existing city police facility.
~ . Assessment of the feasibility of using either the sheriffs facility or the city's
.. facility, with appropriate expansion and renovation to meet needs of the newly
J
",. combined department.
J
..
- Assessment of the cost of upgrading either the county or city facility to meet the
.
",. consolidated agency's space needs, compared to other available options
oJ
~ including building new and adaptive re-use of an existing non-law enforcement
~ ' facility (for example, unused government property).
~
~
~ 12
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. Consolidatina Police Services: An IACP Plannina ADDroach Executive Brief
~
~ . Determination of the best course of action to resolve all facility issues relative to
~ consolidation, focusing on timetable of completion, cost, and who will take
.. responsibility for managing this component.
,. J
..
.oJ
. Phased Transition Plan
-
.
- This final section assumes that a successful retreat and comprehensive feasibility study
-
- have been completed, with the final outcome a strong recommendation to consolidate,
accompanied by a strategic plan. At this juncture, the consolidating agencies are
- positioned to take a series of action steps to put the consolidation in place. The order in
. which tasks are accomplished, and the time provided for each, is the last hurdle. Solid
. planning at this transitional phase will ensure that both agencies enter into the new
. agreement in a positive manner. The following are some examples of issues requiring
attention during the transition:
.
- Staff Concerns Staff may show concern about their futures - assignments, supervision,
- and rank. A careful plan for a period of adjustment would be necessary to calm staff
anxiety and clarify job status.
-
- Administrative Concerns As the administrations of the former agencies dissolve, plans
- would need to be made for a slow, careful transition to the new administrative structure.
- At the same time,. uninterrupted supervision and leadership of all employees would
prove especially important.
-
.. Facilitv. Vehicles, and Eauioment As consolidation proceeds, the two agencies may
- move into a new or renovated facility. Planning, completion, and setting a timetable for
occupancy of this facility will be of critical importance. Equally important is the design,
- acquisition, and phasing in of vehicle identification (new logo), and new uniforms and
- patches.
..
.. Evaluation and Adjustment
,
..
.
.. A process and outcome evaluation of the consolidation should be put in place to parallel
- consolidation steps. This evaluation will provide critical information on consolidation
..
- progress and allow for course corrections when and if needed. The consolidation
.. planning team must agree in advance on the objective indicators of consolidation's
~
.. success, including personal satisfaction indicators. The evaluation plan must allow for
,- these criteria to be documented and measured in both objective and subjective ways.
..
J
~ Surveys would be a good means of measurement. Individual and group surveys or
~
.. focus groups would be effective ways to obtain the input of officers and departmental
.. employees, and gain insight into their concerns. Citizens have unique and differing
-. reactions to consolidation and should be surveyed too. . Informal community surveys or
II'"
=' focus groups could be completed at community meetings, while formal hard-copy
~ surveys could be mailed if resources were available.
~
~ 13
~
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~ Consolidatina Police Services: An IACP Plannina ADDroach Executive Brief
~
. The evaluation would also have to incorporate identification of problems and sufficient
.~
. resources to -remedy them. Adjustments would not be indicators of failure but rather of
,
. a solid planning and implementation process.
~
~
.
-
.
.
.
.
.
.
.
.
.
.
.
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a
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..
..
..
..
..
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,
~
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~
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~ 14
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~ Consolidatina Police Services: An IACP Plannina ADDroach Executive Brief
~
-
-'
- Illi~CONGIJUSI()N--~~f!J~~~'::rf;~~}~~ji~;i~;~il_;i^i.~__.~~.a1I
-' >_" _.~'i"'-~.___< -. ,-._,;,,-~ ,-, .... .._;. ."~;,,.,'-, ->,'t;\:l;;;,"',,".<;l':~.""""-'~ _;,~;.;">-,::,;..~-;>~~:"':>:~':!4,~~~,:.*,.....,,,fi~~~;:~',~,'~ ... _.' :'. ...{!"'.;""',~f.;f~?\.~".~t~,._,. ..... ;'",., ,'.."., ._;. ,:~~"..~:; 0~.._;.-.' .. --:-)~~.,.,~I.:~ .~~.', . ._'. _.,. ,"
.
,_J
.. Consolidation of police services, whether partial or complete, among, two or more
.J
- agencies has been an issue of interest to governing bodies and police agencies for
~ decades. In some jurisdictions, movement toward such consolidation has been smooth
-
- and uneventful. In others, the concept has been met with great negativity. In all cases,
- the cost-effectiveness and operational efficiency of consolidation have been the key
- factors in final decision-making.
-
- There are three ways one can view consolidation: First, from a historical perspective,
how effective and efficient have other consolidations been nationally? Second, what are
- the current short-term costs of consolidation? Third, what are the long-term benefits of
- consolidating? If jurisdictions weigh all of these variables and predict a long-term
- benefit, consolidation will be likely.
. The IACP urges those considering consolidation to avoid simplistic assessments.
. Determining that consolidation brings substantial immediate costs is not a sufficient
. reason to discontinue investigation. Nor is discovery that consolidation will bring no
long-term financial savings to either jurisdiction sufficient to discontinue investigation,
. unless financial aspects are the only aspects of interest to the jurisdictions.
.. Consolidation must be viewed in the totality of police services, officer and citizen
.. satisfaction, and the capacity of the new agency to better serve the public and fight
.. crime. Looking at this larger picture, jurisdictions may adopt consolidation even with
level or increased costs to bring stronger policing to their constituents.
..
.. In order to facilitate rational and informed decision-making about consolidation, the
... IACP has created a two-part planning process to aid police and their governing bodies
in assessing all aspects of partial or complete agency consolidation. Pilot
.. demonstrations of this planning approach have proven successful in jurisdictions in
.... Illinois and Wisconsin to date. This Executive Brief is intended to serve a guidebook for
. other jurisdictions across the United States to address consolidation in an effective and
II.
. successful manner.
...
-
..
-
..,
~
..
-!
..
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~
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~
~ 15
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t Consolidatina Police Services: An IACP Plannina Approach Executive Brief
t
t
. J)(~flRQ~i;CT;$IA~,f.l~'N"[tQc>N$QUt~tjI~:i~.g~~~:;ii~i~~,~t;;,;;J)~J~~~,: ' ;,~:bi:!:;If:;?Jr~'~~;.~i~~~.~~
.
. Chief J. Scott Finlayson, Springville, Utah, Police Department and President, IACP
t State Association of Chiefs of Police (Final Report Review)
. John R. Firman, Director of Research
,
, Elaine F. Deck, Project Coordinator
~ Carmen E. Barnes, Project Assistant
,
, Wesley D. Mahr, Research Fellow
.
. Bryan A. Murphy, IACP Research Center Intern
. Peter Slavin, Principal Writer
.
. Frederic D. Moyer, President, Moyer Associates, Inc.: Cover Art
.
..
..
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ii.d.
MEMORANDUM
TO: CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER f.t
SUBJECT: CONSIDERATION OF RESOLUTION CALLING UPON THE
NUCLEAR REGULATORY COMMISSION (NRC) TO REVIEW
WITH GREAT CARE ANY LICENSING PROPOSALS
SUBMITTED FOR THE DIABLO CANYON NUCLEAR POWER
PLANT AND RECEIVE PUBLIC COMMENT REGARDING
ISSUES RELATED TO THE DIABLO CANYON NUCLEAR
POWER PLANT
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council receive public comment regarding issues
related to the Diablo Canyon Nuclear Power Plant and consider the attached
resolution.
FUNDING:
There is no cost to the City associated with this item.
DISCUSSION:
At the October 14, 2003 meeting, in response to concerns expressed by
individuals in the community regarding the Diablo Canyon Nuclear Power Plant,
Mayor Ferrara requested, and the City Council agreed, to place an item on the
agenda for public input and discussion. Many of the concerns expressed by the
community have come from representatives of Mothers for Peace, a non-profit
organization which has been actively involved in providing public comment
regarding issues related to licensing of the Diablo Canyon Nuclear Power Plant
facilities. Therefore, staff has invited a representative from both the Pacific Gas
and Electric Company (PG&E) and Mothers for Peace to make a brief
presentation on issues regarding this item. Information submitted by San Luis
Obispo Mothers for Peace is attached.
The primary direct involvement of the City regarding activities related to the
Diablo Canyon Nuclear Power Plant involves emergency response planning
activities. Since any emergency incident involving the nuclear power plant would
be considered a countywide emergency, the County of San Luis Obispo Office of
T
CITY COUNCIL
CONSIDERATION OF RESOLUTION AND PUBLIC COMMENT REGARDING
DIABLO CANYON NUCLEAR POWER PLANT
DECEMBER 9, 2003
PAGE 2
Emergency Services (OES) is responsible for coordinating emergency response
activities. Therefore, Ron Alsop, Director of County OES, will also provide a brief
presentation on these emergency response planning activities.
The Diablo Canyon Nuclear Power Plant Emergency Plan has been developed
by County OES, in conjunction with the affected communities and the Nuclear
Regulatory Commission (NRC). This plan is exercised at least annually in
cooperation with State OES, and is monitored by the NRC. Many different levels
of training are administered by both PG&E, the plant operator, and by OES on an
on-going basis. Fire and Police departments, ambulance providers, hospitals,
and State, County, and local government agencies are the participants in these
drills and exercises.
As staff understands it, current concerns largely involve efforts by PG&E to install
an Independent Spent Fuel Storage Facility. This process requires issuance of
two licenses by the NRC, one for internal plant modifications and one for
construction and generation of the storage facility on-site. The hearing process
has concluded and the first license has been issued, but the second has not yet
been finalized. Land use approval is also required from the SLO County Board
of Supervisors. However, their decision can be appealed to the Coastal
Commission and overruled by the NRC.
PG&E is also conducting feasibility studies regarding application for NRC license
renewals to operate an additional 20 years. Additional concerns have been
expressed by Mothers for Peace regarding dangers of the nuclear power plant as
a potential target for terrorism. The San Luis Obispo County Board of
Supervisors has conducted hearings on this issue. On August 20, 2003, they
adopted a resolution urging the NRC not to approve licensing until these
concerns have been addressed. Staff has prepared and attached a similar
resolution for consideration if the City Council determines it would like to take
action consistent with the Board of Supervisors.
ALTERNATIVES:
The following alternatives are provided for the Council's consideration:
- Adopt attached resolution;
- Make changes as appropriate and adopt resolution;
- Receive public comment, but take no action;
- Provide staff direction.
Attachments:
1. Correspondence from San Luis Obispo Mothers for Peace
S:\CITY MANAGER\STEVE\Council Reports\12.09.03 NUCLEAR POWER PLANT. doc
--~----------------------- -
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ARROYO GRANDE CALLING UPON THE
NUCLEAR REGULATORY COMMISSION ("NRC")
TO REVIEW WITH GREAT CARE ANY LICENSING
, PROPOSALS SUBMITTED FOR THE DIABLO
CANYON NUCLEAR POWER PLANT
WHEREAS, the Nuclear Regulatory Commission ("NRC") staff stated on July 15,
2003 that it expected all nuclear utilities to file license renewals in the next few
years; and
WHEREAS, Pacific Gas and Electric Company ("PG&E"), owner and operator of
the Diablo Canyon Nuclear Power Plant, has begun feasibility studies regarding
applying for a license renewal for an additional twenty (20) years of operation;
and
WHEREAS, after the events of September 11, 2001, all nuclear power plants
must be considered as potential targets for acts of terrorism or war; and
WHEREAS, the citizens of the City of Arroyo Grande need assurances from the
NRC that all necessary steps are being taken to protect Diablo Canyon Nuclear
Power Plant from attack.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Arroyo Grande, in the interests of public health and safety, calls upon the NRC to
review with great care any licensing proposals submitted for the Diablo Canyon
Nuclear Power Plant.
BE IT FURTHER RESOLVED that the NRC is urged not to approve such
licensing requests until the above stated concerns have been resolved; and the
Director of Administrative Services forward the text of this resolution to the City's
State and Federal elected representatives, the Nuclear Regulatory Commission,
all relevant oversight agencies, and the Pacific Gas and Electric Company so
that the intent ofthis City Council is widely known.
On motion of Council Member , seconded by Council Member ,
and by the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
the foregoing Resolution was adopted this day of ,2003.
---~. r
RESOLUTION NO.
PAGE 2
TONY M. FERRARA, MAYOR
ATTEST:
KELL Y WETMORE, DIRECTOR OF ADMINISTRATIVE SERVICESI
DEPUTY CITY CLERK
APPROVED AS TO CONTENT:
STEVEN ADAMS, CITY MANAGER
APPROVED AS TO FORM:
TIMOTHY J. CARMEL, CITY ATTORNEY
-~---- ----;--
12/132/213133 16:37 61'32734676 BECKER ~,._---" _, P~~E 02
The San Luis Obispo Mothers for Peace and the Santa Lucia Sierra Club will soon file a
case in the 911I Federal Circuit Court. We believe that before liccnsina PO&E's proposed
facility for storage of spent nuclear power plant fuel, the NRC was required by the
National Environmental Policy Act to publish an Environmental Impact Statement
addressing the environmental impacts of terrorists attack or other acts of malice or
insanity against the 18cility, and weighing alternatives fur mitigating or avoiding those
alternatives.
The putpole of Out laweuit is to fo~e the mc 10 plO-ride die crud" meuwe of
enviroDlnenw tlCcountability required by NEPA.
ISSUES DENIED HEARINGS BY THE NUCLEAR. REGULATORY COMMISSION
TERRORIsT THREATS:
1. Reducing the number of ittadiatcd fud assemblies to the original configuration allowed
when the license was granted.
2. Building a "hardened" containment StIUctw:c ovex spent fud pools equal co or greatet in
strength to containment ovu xeactors.
3. All-metal casks, as oppoeed to "hybrid" casks for storage of spent fuel rods on~site, with
capability of withstanding water pttssute when and if they ate transported in the futw:e.
4. Spreading casks around the property, sheltered by be:mu or bunken to reduce thteat from
tet:I:Otis t attack.
5. Twenty mile "no fly zone" uound the plant
TRANSPORTATJON
1. A demonstrated plan for tranSporting "temporary" stomge of high-level radioactive W1ste
offsire and an open -.nd proveD safe site to send this waste.
2. Independently verified safe transport containers and methods of ttanspott (road. t'2il and
sea)
3- Demonstration of adequate emergency plans and equipment for all communities along
ttansport routes,
SEISMIC ADEQUACY
1. Seismic adequacy of proposed and recommended stonge sites for storing high-level
radioactive waste-
2- Independeo.t verification of seismic adequacy ofPG&E's proposed dry cask system.
X Jndt up iaiOm>a.... on an issues, including a 1e_1iom AtIDmeJ' G<n<nl ~ and Senator
Dianne Feinstein are available on the Mothers for Peace website: www.motheaforpeace.org
12/132/213133 16:37 61'32734676 BECKER PAGE 133
..-,--..... .- -
One day we may see the same thing happening with the reactor(s) at Diablo which are more than
twice the size oftbe small decommissioned i-eactor in So. California.
Find this article at: hnp://'N.:ww.aic.comlnews/cgntent/newslt203/01 nuke\)arge,html
Dumping reactor a daunting task Shipping old structure across the country will pose problems.
By CHARLES SEABROOK
The Atlanta Journal-Constitution A 770.ton retired nuclear reactor, filled with concrete for
safety, has yet to leave its California home, but its proposed journey to a South Carolina nuclear
dump a1ready has the makings of an epic sea voyage. Legal, political and environmental issues
have so far stymied Southern California Edison's efforts to barge its retired reactor 15,000 miles
around the southern tip of South America to a dump in Barnwell, S.C., the only licensed facility
in the United States that will take the mildly radioactive debris. 1be reactor dilemma illustrates a
huge problem that can only get worse: how to get rid of decommissioned nuclear reactors and the
remains of America's aging nuclear plants. More than balfthe nation's 103 commercial reactors
face mandatory shutdown in the next 30 years. Old reactors are classified as low-level nuclear
waste, not as dangerous as highly radio~tive waste such as spent fuel nom atomic reactors and
weapons plants. Anyone hugging this reactor for an hour, officials say, would be exposed to
radiation equivalent to balf the output of a chest X-ray. But the low-level material still must be
carefully sealed and pennanently stored to protect human health and the enviromnent. 0 Rail
lines have baJked at overland shipping for liability reasons. 0 The U.S. Department of
Transportation has roled out trucking the reactor over highways. 0 Panama Caual officials won't
allow passage because the reactor far exceeds their 1 SO-ton weight limit for radioactive
materials. 0 Federal authorities, wary of a route around South America, question what would
happen if the reactor sank in international waters. 0 And officials in South Carolina are wary of
letting the reactor enter the state through the port of Charleston. The latest setback came last
week. The U.S. State Department said "a number of significant issues" still must be resolved
before the decommissioned reactor can leave the San Onofte nuclear plant near San Clemente,
Calif., for its long, slow, voyage to Charleston and Barnwell. The State Department questions,
among other things, Edison's plan to route the reactor-Jaden barge in international waters around
Cape Hom at the end of South America, one of the world's 1m5t dangerous nautical passages.
Instead. the agency suggests that Edison consider the Strait of Magellan. an arm of the sea farther
north that runs between the South American m",inIA11d and 1arae islands. The Strait of Magellan
is more shehered and less turbulent, but it lies within the territorial waters of Chile, and the
reactor shipment would be subject to Chilean law. Edison contends there is "only a slight
difference" in risks between the two passages. Also unresolved is whether South Carolina will
allow the barge into the port of Charleston, where the reactor would be oIDoaded and shipped by
rail the last 120 miles to Barnwell. But Edison officials are optimistic that the utility soon will
have aU necessary permits in hand. "We intend to proceed with our plan," said Edison
spokesman Ray Golden. Edison could indefinitely store the old RSCtor on-site at the San 0n01Te
plant but bas chosen not to. "We feel the best option is sendina it to permanent disposal at a
licensed f8cility," Golden said. That option will cost Edison about $460 million to decommission
the reactor and send it to a permanent resting pJace. The San Onofte unit is not the nation's first
mothballed commercial reactor -- nor the biagest hunk of nuclear waste -- to be disposed of. But
a 15,OOO-mile journey through the icy seas around Cape Hom would be the longest, most
12/~2/2~~3 16:37 61'32734676 BECKER PAGE ~4
~omplex ~ffort ever undertaken for nuclear waste disposal The United States has only two
lIcensed sites that will accept such nuclear junk: the facility in Barnwell and another in Hanford
Wash. Sending the San Onofte reactor to Hanford 'WOuld lop many thousands of miles ftom the '
itinerary, but there's a major roadblock: Hanford accepts material only ftom Northwestern and
Rocky Mountain states under a federal interstate compact that bars wastes from other states.
Nuclear junk from California cannot be sent there. That leaves only the 23S-acre site near
Barnwell, where for 30 years, the bulk of the nation's conunerc.ially generated low-level nuclear
waste has been buried in steel and concrete vauhs, 25-50 feet deep. Run by Chem-Nuclear
Storaae Systems, a unit of Duratek Inc., the Barnwell filcility is scheduled in 2008 to begin
baning nuclear wastes from all states except South Carolina, Connecticut and New Jersey. Those
states have formed their own compact to dispose of wastes generated within their borders. South
Carolina originally belonged to the Southeast Compact (which included Georgia), but pulled out
in 1999 after North Carolina refused to build a second regional filcility to accept the region's
nuclear leftovers. In a pending federal lawsuit, Alabama, Florida., Tennessee and Virginia claim
North Carolina failed to live up to its agreement to develop the second site. The controversy over
the San Onofre reactor's proposed journey to Barnwell is bound to be a hot topic on Thursday
when South Carolina Gov. Mark Sanford's nuclear advisory committee meets in Barnwell. The
panel is expected to discuss phasing out the site except for the other states in the compact.
Known as Unit I, the San Onotte reactor began operating in 1968 with a generating capacity of
450 megawatts, enough to energize about 500,000 homes at a time. Edison said cost concerns
forced it to shut down the reactor and remove its high-level nuclear fuel in 1992. The reactor's
three steam generators, pressurizer and other parts were removed and shipped by rail to a
disposal site in Utah. The massive steel container known as the reactor vessel was left and
ultimately filled with tons of concrete to render it unusable. Now, the 770-ton pyramidal castoff:
bigger than a railroad car, sits atop a 220-ton transportation crawler in a fenced yard at the San
Onofte plant, awaiting shipment to Barnwell. The utility had hoped the reactor journey would be
well under way by now. At first, Edison planned to move the reactor eastward by rail to Houston.
barged across the Gulf of Mexico and up the East Coast to Charleston, and offloaded to a rail car
for the final 120 miles to Barnwell. The first setback came when the Burlington Northern &
Santa Fe Railroad "wanted to be held harmless ftom all liability" for the trip to Houston, Golden
said, but Edison wouldn't agree. Then Panama Canal officials denied the reactor passage because
it exceeds a 1 SO-ton weight limit for radioactive materials. In March, South Carolina officials
raised security concerns and said the reactor couldn't come through Charleston. The state bas
softened its stance since, but Golden said the issue is not fully resolved. An ahernative would be
to barie the reactor up the Savannah River and off-load it at the Savannah River Site, the nuclear
weapons facility adjacent to Barnwell. But a new setback came last week from Washington when
John Dooley, acting director of the State Department's Office of Nuclear Energy Affairs, in a
letter to the Transportation Department, questioned the route around South America. Dooley
contended that Edison has not adequately answered his office's persistent questions about how
the reactor would be salvaged if it sank in international waters. In response, Golden said the
shipment would carry liability insurance to cover up to $50 million in salvage operations. "But
we think the possibility of sinking is very remote," he said. Edison's critics, however, including
Tom Clements of Oreenpeace International, believe that the risk. is too great. "It's best to secure
the reactor on site than risk having it end up being stored forever on the bottom of the ocean or
leaking radiation in a pit in South Carolina," Clements said.
------ ------- --'~..--..-T'""' .,,---
12/132/213133 16:37 6192734676 BECKER PAGE 135
'MH", ._~
INSURANCE
Insurance policies for homes and businesses clearly state that radioactive releases ftom
nuclear power plants are not covered. The nuclear power industry is the only industry
that cannot insure itseIfand must have the goverrunent (the people/us) provide its
msurance.
The Nuclear Regulatory Commission's (NRC) denial of hearings on safety,
environmental, and security impacts is unconscionable. The NRC refused to address the
consequences of destructive acts of malice or insanity against PG&E's proposed
expanded high level radioactive waste facility.
The NRC's is responsible for evaluation ofa range ofaltematives to PO&E's proposed
nuclear dump including: dispersal, protection, and use of more robust storage casks,
reduction of high-level radioactive fuel assemblies to the original license configuration
(supported in the County's draft EIR) and constructing a containment comparable to the
containment over the reactors. This would make our community safer and must be
considered.
In an era extreme vulnerability most Americans expect retaliation. Yet the NRC has
refused to address these issues in fun evidentiary hearings.
CASK DESIGN
Many county residents are unaware that casks proposed by PO&E to store over 4,400
radioactive fuel assemblies are only licensed for 20 years. Yet according to PO&E' s
application casks may remain at Diablo Canyon for decades.
Under the best of circumstances, nuclear waste cannot be removed from our earthquake
prone coastal zone before 2018. It is extremely likely that Diablo's high-level radioactive
waste will remain in our county for decades, perhaps forever.
- ------~-------,- ------'- ,---'-'--'-----~-~.> -->-'~'^"~' -~---'.
12/62/2663 16:37 6192734676 BECKER PAGE 66
-
Many aging components predicted by the nuclear industry to last the fult license terms
have begun to fail across the nation. Why then should the public believe that casks
designed to last 20 years wiIJ not develop dangerous cracks or leaks?
The Nuclear Regulatory Commission (NRC) denied hearings on the safety of cask
design- along with many other issues regarding safety, environmental, and security
impacts of expanded nuclear waste in our county-
-------------- ' ----~---- ___"-'---'--_.''r''
12/132/213133 213:56 61'32734676 BECKER PAGE 02
HEADLINES THIS WEEK
11-1403
INDEPENDENT NUCLEAR DUMP REPORT: Wute Caaiaten wiD leak (at
V.en MID)
These canisters have undergone "independent" testing. The canisters proposed for
Diablo Canyon have not been independently tested. Canisters proposed are licensed for
20 years. yet PG&E admits in its applicatio~ the canisters could be on site for decades.
perhaps 100+ yeers.
11-13'()3
CLOSE INDIAN POINT CAMPAIGN GAINS MOMENTUM AS ELECTED
OFnClALS UP TIlE ANTE.
In New York over 300 elected officials (both RepubliC811S and Democrats) have called
for the shutdown of the Indian Pt Nuclear plant. 20 million people live within a SO mile
radius of the nuclear plant. Diablo Canyon is no safer than Indian Point, we just have
less people within a 50 mile radius. We all have the same issues: inadequate emergency
plans, proposed transport routes that CIIDDOt be secw:ed, over-crowded radioactive fuel
pools. in1ltiequate protection against terrorism, ads of malice or insanity. new seismic
information the NRC refuses to address in hearinp....
11-13..03
NUCLEAR POWER PLANTS WARNED
The Nuclear Regulatory Commission notified all nuclear plants of its concerns for an
increast threat potential during the Islamic holy month of~tm'lMan (Oct 26- Nov 24).
11-13-03
70 LIGHT AIRCRAFT STOLEN IN US COULD BE USED IN AnACKS
A "no t1y" zone does not exist around nucleu facilities. Highly radioactive fuel
assemblies are stored in pools that have no hardened containment. A large commercial
aircraft would not be necessary to penetrate this unprotected nuclear waste pools.
---- --,-"------_. -_.-._--,~....-"- ,~,-"-,,-_.".
11.e.
MEMORANDUM
TO: CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGE$
SUBJECT: CONSIDERATION OF DESIGNATION OF INTEGRATED WASTE
MANAGEMENT LOCAL ENFORCEMENT AGENCY
DATE: DECEMBER 9, 2003
RECOMMENDATION:
It is recommended the City Council provide direction to staff regarding
designation of the Local Enforcement Agency (LEA) for integrated waste
management.
FUNDING:
There is no fiscal impact to the City as a result of this item.
DISCUSSION:
According to the California Integrated Waste Management Act of 1989 and
corresponding regulations, each jurisdiction may designate a local agency to
serve as its local enforcement agency (LEA). The LEA performs permitting,
inspection and enforcement duties for permitted, closed, abandoned and illegal
solid waste facilities, such as landfills, compost facilities and transfer stations.
Since there are no such facilities located within the City, designation of the LEA
has minimal direct impact on the City, but does affect countywide operations.
In 1992, the County of San Luis Obispo, Environmental Health Division was
designated as the Countywide LEA. Since then, all jurisdictions in the County
have utilized them as the LEA except for the City of Paso Robles, who
subsequently withdrew its designation and is currently relying on the California
Integrated Waste Management Board as the enforcement agency. However, at
the February 25, 2003 meeting, the City Council adopted a resolution
withdrawing the City's designation of the County Environmental Health Division
as the LEA and designating the San Luis Obispo County Integrated Waste
Management Authority (IWMA) as the LEA. This change was recommended by
the IWMA in response to an action by the County Board of Supervisors
withdrawing County Environmental Health as the LEA. Other cities in the County
approved similar resolutions.
----- -----,--'-'-
CITY COUNCIL
CONSIDERATION OF DESIGNATION OF INTEGRATED WASTE
MANAGEMENT LOCAL ENFORCEMENT AGENCY
DECEMBER 9, 2003
PAGE 2
However, the action was contingent upon the IWMA being certified by the
California Integrated Waste Management Board. Thus far, the IWMA has been
unsuccessful in obtaining this certification and recently voted to withdraw its
application. The City may now either designate the California Integrated Waste
Management Board as its LEA or use San Luis Obispo County if it decides to
continue to serve as an LEA, which is currently still under consideration by the
County.
At the November 25, 2003 meeting, Mayor Ferrara presented this issue under
"City Council Communications" and requested to place the item on the agenda
for further discussion, and the City Council concurred. If the City Council directs
staff to pursue designation of the California Integrated Waste Management Board
as the LEA, approval of a resolution taking this action will be necessary at a
future City Council meeting.
ALTERNATIVES:
The following alternatives are provided for the Council's consideration:
- Provide direction to staff to prepare a resolution for City Council
consideration designating the California Integrated Waste
Management Board as the City's LEA;
- Defer direction until the County has determined whether it will
continue to serve as an LEA;
- Direct staff to research if there are other alternatives;
- Provide staff direction.
Attachment:
1. Correspondence from the San Luis Obispo County Integrated Waste
Management Authority dated November 18, 2003
S:\CITY MANAGER\STEVE\Council Reports\12.09.03 IWMA LEA REPORT. doc
----~. r --------------
- ---~._- -~.._"_._-~.._-"~- ...._'_._-_.._.~"
San Luis Obispo County
:........ ~.~ ~~~~~~.~.~.W ~~~~ .MAAPf'~~~~~~~~.?~.i.~y.
IWMA BOARD MEMBERS 03 NO\l '9 PH ,: 5~
November 18, 2003
Dave Brooks. President.
Authorized Districts
Harry Ovitt. Vice President Steve Adams, City Manager
San Luis Obispo County City of Arroyo Grande
P. O. Box 550
Tony ferrara. Arroyo Grande, CA 93421
City of Arroyo Grande
George Luna. Subject: Solid Waste Local Enforcement Agency
City of Atascadero
According to Title 14 CCR, each jurisdiction can designate a local jurisdiction to serve as
Ron Arnoldsen. its local enforcement agency (LEA). The LEA is then responsible for enforcing
City of Grover Beach California solid waste regulations in the jurisdiction. All cities, except Paso Robles, have
Dave Elliott. designated San Luis Obispo County as the LEA.
City of Morro Bay
About eight months ago, San Luis Obispo County and the cities of Arroyo Grande,
Jim Heggarty. Atascadero, Grover Beach, Morro Bay, Pismo Beach and San Luis Obispo adopted
City of Paso Robles resolutions which: (1) withdrew the designation of San Luis Obispo County as the LEA
and (2) designated the IWMA as the LEA. This action was contingent upon the IWMA
Joe Crescione. being certified by the California Integrated Waste Management Board.
City of Pismo Beach
Based on this action, the IWMA submitted an application in April 2003 to the California
John Ewan. Integrated Waste Management Board to become certified. However, because of the
City of San Luis Obispo difficulty of becoming certified, the IWMA Board voted last week to withdraw its
Katcho Achadjian. application.
San Luis Obispo County
San Luis Obispo County is considering its options and may either continue as the LEA
Shirley Bianchi. or ask the California Integrated Waste Management Board to serve as the LEA.
San Luis Obispo County
If San Luis Obispo County continues to serve as the LEA, then you have the options of
Mike Ryan. either continuing to use San Luis Obispo County as your LEA, designating the
San Luis Obispo County California Integrated Waste Management Board as your LEA, or designating some other
jurisdiction to serve as your LEA..
Peg Pinard.
San Luis Obispo County If San Luis Obispo County designates the California Integrated Waste Management
. Board as its LEA, then you would have to either designate the California Integrated
Bill Worrell. Manager Waste Management Board as your LEA, or you could designate some other jurisdiction
Carolyn Goodrich. Secretary to serve as your LEA.
Peter Cron. Staff Analyst
Raymond A. Biering. Counsel If you have any questions about your options or the process, please feel free to give me a call.
870 Osos Street
San Luis Obispo. CA 93401 Sincerely,
805/782-8530 &IIJJ:/
fAX 805/782-8529
E-mail: iwma@iwma.com <!.. " (!,t-~ ~t'~
Visit Our Homepage: www.iwma.com Bill Worrell
Manager Di"'~o.f .
Business Programs: 805/440-9540 Sv"vt~/c
Recycling. Compost W Haz. cc: Tony Ferrara, IWMA Board Member ,'/14 b~
Waste Info. 800/400-0811
School Programs Information File
805/782-8424 I) Printed on J 00% recycled (100% post.consumer) psper
_---.--n.--- -. ~-._.~._-._-_. ----- ...-