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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. ,--.--.------- 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. -- -----------,--~-,- 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. ---.....- -.-"--..,-.- _._~----". ---- ----~_.- 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. - ---_._'--~--'"" 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. -- ------ -'--'--~-----_.- ____________n_ 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 ----_.----- 5.b. OF ~// / I. . '~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 ----'-- --~_._-~~-- --.----- --------~ 5.8. OF --- ~/ / ///" ! I / ! I \' 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 -~--_."----- ---- -------- -----.------ .. 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 Dept. 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('I) I'-- > 0 ~ (3 () Z '::L a: C/) -I <( C/) W <( ~ ~ ~ ~ ~ ffi ~ 0 w w C/) w _ ~ Q., cr: ~ cr: ~ ~ ~ ~ ~ C) Z ~ w '!> o 0 <( (!) w Z ~ ~ ~ ~ ~ <( _ cr: -I -I <( C Z W - - :> .... ~ > > > :> .. 0 .... I'-- ('I) N I'-- o I'-- I'-- ('I) ('I) N 00 ~ ('I) co .... 00 0 co CN 0 N 0 "<t 0 ~o 0 0 0 0 0 ::IE >0 0 0 0 0 0 5; ('I) ('I) ('I) ('I) ('I) ('I) N 0 0 0 0 0 0 o 0 0 0 0 0 It) (tJo s~ ~ ~ ~ ~ ~ o .c ~co co co co co co N c~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ .. ~ ~ ~ ~ ~ ~ C") ~ g -g..o> 0 .... N ('I) "<t ';;~ u.!1O ~ ~ ~ ~ ~ = It) ~ u ~ ('I) ('I) ('I) ('I) ('I) .c ~ c::::J.... .... .... ~ ~ ..- ~ :: cB ~ ~ .... ..-..-..-..- 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% --- -------- .-- __'_"__'_."_'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 .. ----- -'--.- ~----.,_.._,--~." ~._,> -~.~.. .~~..~- '.'--.- ...., .-....-.-.-..- 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. --......,-.--- ....,., .. .'-'N...q,_,..,_~".,,,,,,,,,._~ 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 - EXHIBIT A1 N N ~ ~ 8 3 '0 _ () 'C ...., .- .... s::: a.!{l <( 0 J! Cl) II >. .- ..- m E _I Q) - ..., Cl) c"'-' o Q) ~ ...J N ~ 0 c:: l:jj~j1 0 I 0 N -~~:H .:. -- I. · CON ~ I (])C> en<( (]) I. I- U a.. -- .. l- I · en CO-- o . ~ :J CO 'or- U '- I .- <( '- (]) +-'...... <(0) > D 0 .- ..c: >< W ~ -~., ~ _.~ --- EXHIBIT A2 ~ N I ~ ~ ~ 0 ::;] 0;:: o _ 0- U) U) c:: "tJ t>>o ~ r::::: <{ >- E CI) II .!!! :::i Q) Qj ~ ON ~ 5 <3 0 ...J N -- . . . 801 m~ ~~~.~. j1j1~1 C) 0><( . - U L..__ L.. \ \ . - en -- L..O :J .- ~ :J m u L.. -- 0> L.. 0)> <(0 N I c::( ~ -- ..c -..... ..r:: x W "..'-~-"""."'_."'-""-- EXHIBIT A3 C'! N I ~ ~ ~ "0 ~ :E "'C -i5> -~ I/) c: <( 0 ~ >- E 8 Q) II~::J C) ~ CD ~ N Q) 0 <3 -- ...J N () . 101 mN -.-.~. . :~~~~: ~6 (1.)<( en (I.) . - () s... a.. · L: .- en m-- s...0 :J ~ . - :J m () s... -- (I.) s... > ---.-...-.-- -- -- --- -- <CO ro I N0X:JJ5IH <( ....... ---...-----.-- 1._.....___ '----. -- -- ~,- .Q -- ..c: X W ---- ,- EXH\BrT A4 C'I ~ G) ~ 5 ~ 't5 =' .;:. (.) "iP @ ~ ~ ~ \ C_, en ~ ~ ~ 0 \. ~ Q) R. u <.) · ..::J · ...... '" .',.,. 0 \ ~ ->> ." (\1' '\-\ _ _ ~ (9 0- 0)4 . ... en --a uJ. ... "'U ._ 0) ~ \...- .- /~~ G) 0- }cA \..- 0)....... .--- '=' 0 /., .,t..# --- --- \..- tl .- ~ 0> ~-- ~ 4:. - (Q ~ ./ ~ ~ - 5 U - \...- o . ...... 0) . - \..- ~1 .. .......-... ~ C ~ .4: ...... ' ' .--- .a .--- ~ , . , ---------------- .-.U -- -,----- ------- ----- . - "....~,..............~,,-....~._- 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 ---.--- .,-~-- ---- - ~'~...".'... . ^"'-"'._.....-,,-,>~--,- 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 <.-.----.-..- ,.... ".'>.'~_'"'_",>o,,,.,,,.,,,.,_._ 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 --~ , . "~'_"_~"_''''_-0_,,__'__'__ 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 .- -- --~~,~--,-""-""'-..,'''-,-'''',- 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 -.." ,-_..<."'... ...,~,,,.,.,~,,'<"",,.- 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 . . ------. .. -- - . .,-._<~~-"...,-_.-,-----"'..--.._- ---- . . ~ - ... - . .-;.:.~~~~~~~~~~~ -: _~~~~~~L~ I~. I I I S \J a "'0 0 C/) ~ EXHIBIT A 0 ~,~ ->. o i::: }> 0 0 .:r '7' < . . i ~ (1) . - ::J J\) 5" '" C 0 (1) 0 :;0 (,.) ~ 0 0 ::J (1) -n (1) CD .... 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 - -- --- --------.------- . EXHIBIT 1 ~ ~ ~ 0.... , ~.c ~ (V) tz ~ 03,,- "'- CD .':/ UJe; <.'(h 0::'" 0'" ~ ~~"i~~ ~ :;:0..,. VJ ,,' :s~ -1 ~!!! W<33 () ~~ cr;; ~~ <.'( '" ~ . a.. uC1:\ 'Oo~ :;.I~", , I ..... . ;r=--~~~! '.'~ _~::'/':'::-l~i. :-i). -,2~'AY','),'; liD a' ~; .;:~'tt:'! I ; I J I '~ c...; m I' ~.;:. ;~ ~i . :~: -1>' J " I I ""I .~': J <4'1"""~ .jr!['- '''''''''''':",,'7:'''-',''1""''-'' ''''''''''''1 ;j. I"""~ 'O~' ~~ I ;:"~ IO~ . :;.I~C1:\ II;~I I \~II ~C1:\ '0 .,. .::;,!~ ";;1 j ~. :;.I~", ~(S)'" '. 0- I ' I I ., ::"[ 1.., : ~ Ii n 1 ,~.....- : ,;;"~'!..', {1 .{;~n"'!i :,~ .('::,'iJ,:.,:.'(;; N ,......... ..-- ..- ;~ 3\~k{!;,:r-:S:': )\) 'V<':,\:'\L ------------------------ .l33!:U.S 3Nld , iI' -----~-,------+---"--'"~~- 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 ..... ,,\~\" .., ,'~~.'~./.~\~) '..' .... ..~. '.' "./' \ . ~'OQ '. ...... .., ..' . '. rs.... . .... .. "'t"\4'. .. ........... .~' ....2,0.. .. 'V' .". \~." ..... '-. ......> -, - '--' , , . . ,. .-- . / " ~ . )"... .....,..,"'...'.\.,,/ '--, ,',-' '-.. ~\, .,'\ /'\ .\~~ ~ '. '" '<+"-: ....~>._,_...\,\ \'\, ,.~\ \ \~. h. ' ,..'''''..~ v " YJ '. \", .,,/ .~ ..,' .,.,'-;. ~' ',\",' ~..,<','\\\\ '-( '. V,tf. '. .. '. . "~', \ . '.' . ~ . .' '\y . ~ ,>' <I' N ~ ~ ~ ~ ~ - .... "'C .... ->-r: ~ ~ ,.. -~N'VN c: It. ... NN'C.... I Q) 0)' o..o.c , COQ::)o:) (.) . ~.' C) . Ou ~ ~ u :Ii 0 ~ Q) N::lil->> Z ~ ~ ~ ~' L---'~ g: '0' ~ CD ,". ---; ..J g, . .-.\'1' / \ ... , ~,.__,LT-- ) 0 .' '::'\" > I I I I. I ,_,~ ... .. .,~;, '. .' ~_.--.t--- I a.:' . .~... . . --II,u--,L--:~4 ---I I --,1'. -- .1 I ,_..n II I --",1 ,--'-'-- I =\~~~~~~:~\i 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 \.' /\ <: ; , '" ;' ", '-,< /"'.. ' / \ ~., / ' '-.-.- / . \ "", ""'7/ / . '~ '/ ,. -,/ ./ .' ,," / ./ " " / / .. 'x / '/, , .. , / '// /' / 'y/ /// "", "'., ~' I ' ^"".. , " , '" , < / ," '/ /' ,/ 'x "" / "'- <D"~,s:::. 1 ", /-, / /, ",. / / \, X , .." " " /, ,,~".I',<, / /', " / / __ V \/?-",,- / '5 '_~..;::)~ . '" ~-..", ./"." / \. "~ '" '/' / ..-: \./ ~ '/., '" V' /- /', , / ' "Q) ~ // ',,, <' "~ \ \. ' ) ,/ .. " , " rJ) ''iIY ' ,,'y/ /' y"--'\ ' ""/ ", V /, "- / ,^y.. .', ,: ~o / _//// " .. / '., '/,' ,,' / , ,/ , " /', .. .. /'! . , 'X' . 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I I\-- "~", , ' \ ~.----\ ';..--- _1 \:_.--__ -1..- ___,', ."_ \ '. , --- ~ 't,,-- _._ '~ '-" -- ~- ',\--- ,',- -- " \ ',' ~ . . <"-~"-----""-"-'~--'-- ATTACHMENT 2 .. .. ~ .. A i: ,;; tit i............ s <It 4( 0 = L ;;; ~ ~~ u~ ! ~ "2 .~~ ~ :i c~ -: I ~ ~ c:tii I ;~ ~1i 0_: a E! 0-:1:'.. .",-e !,O! e :::t .....a::,~!. ~ O~~. _!.... ~ ~ :r~:;~.!' ';-: o~ ~~i f f ~~:! o! ~i ~~ e '1:;11 .. ........... .. ". tt ) i fiii j ii if ~ IIOOOOO'O@OO"lllllt'O~ C) c: .- c: o N C) c: .- ~ ~ en .- X Wro Q) ~ <( ~ ro S <.) \t= '+- ro ~ I- .......... Q) C) ro - - .- > 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 - -------- - ----'-~~'-'_.- .. 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 . "- 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. ""','" "",'> Chair Gtthri_~ opened the Public Hearing. . _ ,~ .ti .~;;, ' A~- 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. " ".... .>.. .,,',.:. .\., . - _:~ 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 ,.~'~~;~. . 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 ";'_:~., ,;:.> ,:.:;y.r o . "",',\ .:,oJ" 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. 0:> It) .;; M o o .... ~W"" W~ ~o 0 0 ~ ~""W~""O ....~~O~~ 000000 ~ ~~~ ~~ ~ ~ ~~~~~ ~~~ ~~ gg g ~ ~..trD mrD rD rD MltimMIti ..tMrD rD~ ~.~ aJ - ~V~ m~ ~ ~ m mm ~~~ ~~ N ~ N~ ~~ ~ ~ ~ ~~ ~N~ ~~ m M M W ....WM MO 00 0 0 0 W~MCO~~ ~~OOO.... 000000 ~~~ ~ ~~~~~~ ~m ~ gg g e~""co. ~ ~..t~M..tM ~N ..t O..t ..t .-~ CO W~CO""~~ W~ ~ NN ~ NN N ~ NN ~ ~N ~ ~ ~ M M ~ WMO 00 00 0 0 0 OWO~WW O~OOO~ 000000 ~~N N ~~NO~~ ~~ ~ gg g aJ~O 0 ID~om~~ ~..t ~ ID..t 0 W~W W ONWMNW NM W ~N N ~N N .... NN ~ ~N ~ CO ~ N M ~ ~~~ ~O 00 0 0 0 ~~~~~g ~~OOO~ ggooog ....~.... .... 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Q)-c(\/Q) '....IOIOU ~ I- CI :>.~C) 2Q)e;:g-;:a fiittfiig,C!) w ~ 0.__.->< c~"'~~:g E~~~~OO ==0 ~ ...o~ u-....Q)iij Q)~~IO ~ ~ .:(5."0 E~~:3>!3 b.5~~ gO!. _CDc '!-C <(~.5 .5~1O.~.s~ ~ II) OE~ g5!.s.!!~uJ!!~~~J!!~.s..J ~ ~o _"'Q).c ~IO"" C~C-Q) c( c: ~. ~ ~ ~5!ffi~Q)c~-~IOQ)IOIO-c I- .. .O-guo >-Q) 1-"'~~I-IO!3~~~Oiij=iijI-00 01- ~ - <(w .cU........(\/.cO.c 10 ~ 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 -----,--,.._-----_._----- ----~--- '-----'--.--.. 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. 9 DOCS0C\881805vl 0\22707 .0007 .------------- -------~_.-,- .-.-._---. --^- "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. 14 DOCSOC\88180Svl 0\22707 .0007 --- 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 .-_._-_..~-,--,--,--~.'----------- ,-- ----- - ----.- ---.."'.....~....,._..__.- 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 DOCS0C\881805vl 0\22707 .0007 -- -------_.~~----.---,.,."- -----+ 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 DOCS0C\88180Svl 0\22707 .0007 -~......,--_.~... ---.. .....--.-,..-.-.- 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 19 DOCS0C\88180Svl 0\22707 .0007 --------.-.-------- -~----------,-<.--,-- 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 20 DOCSOC\881805v 1 0\22707 .0007 - ------------------ ---- ,- ----- 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 21 DOCS0C\88180Sv 1 0\22707 .0007 _._~-------> ---~,._--.,.- -- ~-~--,--,---,,- --,.._...._-'---_..~..~.>_._" 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 22 DOCS0C\88180Svl 0\22707 .0007 -~--- -------.~-_..._-- '~._- 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 DOCS0C\88) 80Sv) 0\22707 .0007 ~,.-.,-.-_._-'---,-..,-------------- --. -,~-,-,--.. 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 24 DOCS0C\88180Sv 1 0\22707 .0007 _>___._'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. 25 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 DOCSOC\881805vl 0\22707 .0007 ,-------..-.,----,--.------- ^-_._~ --_.-- 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, 35 DOCS0C\881805vl 0\22707 .0007 -----.-- ._-~-~- -~~ -- -~---~-~ ---"-< 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 DOCS0C\881805vl 0\22707 .0007 --------------.---------.-.. ."--" ~--- ._---------,-- 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 -'---."-~-- -..- --,_.-,~-, --.._---.._-- 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 o ' Attorney-In-Fact Number Of Pages o Trustee(s) 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 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 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 o Attorney-In-Fact Number Of Pages o Trustee(s) o Guardian/Conservator o Other: Signer is representing: Date Of Document Name OfPerson(s) Or Entity(ies) Signer(s) Other Than Named Above DOCSOC\881805vl 0'll2707 .0007 - -- ~_. - 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 i 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 ----'- ,,--_..,...~""-,._,- 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, " 0 -,-'/ ~~ W -< ::z: a C) -., ...:~ ~ I !"-,.. ~..j 1 RONALD P. AR --l :::t.~ 1:-) ;:-.~; fT1 Mayor -0 ~< -.., ~~ C)~ ..... enclosure N p .. ....".J w ". 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) -,.. -~--~. - -----, ~ . , . . . . . ~ .. .. . ~ . . i j , ! I , I , I :1 " ~ . ~ . . , . , ~ (" ,. - ..A . ... ... - ~- ~ . - -":......- ~5\' 'or " ! ti'-"-.-'- - I! ! " ~ - ..-... ..... - -.---...... .. " eO " ! ",' J :, ~ . i \ ~\ j'-r\-\ ~\ r,- \- " ! I I ill , ~., ' - - - '. -- - ~ , -. \..a \ 1 \ '\ \' \\L \\' \ \':1-\..\ \.\1 , : Coqsolidatipg :<....~t\U In I,r iff.; ~..,. ~. ~ ~ ~ . . ,~ ~ ~ . : Police ServiCes ; An IACP Planning Approach e ~ International Association of Chiefs of Police , May 2003 " .' ? .---.--..--..."- . . 7 l' n. {3:" '/1"- . I . I I , , , , , \ \ \ , 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 f " . . 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. ~ ~ .. - ~ ~ - ~ -- - ~ ~ !t ~ ~ ~ ~ , .. . , ~ . . , , , ' . -..--. . . . Consolidatina Police Services: An IACP Plannina ADDroach Executive Brief . . . ';tAij[E'qF'.~J5NfENfs)JJf?$p5~tt:'~1~~T~S~rft~j1!rT.iF)4~~~~~~il.~r'~~1~1~X'J;@~;i;t~3~i:~;.;~~~iJfft~ . . . 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 , .. . . . . . ~ . !it . - . j . . . . . - . ~ . , " I . Consolidating Police Services: An IACP Plannina ADDroach Executive Brief I . ,1~;JN1::Fi,QP't)gXTON;I~?:~~.r.~~t%~~~;t~w~fi1~t~~~:~j;~~1~;":i;7'~';~8~':;t1~%~t'ffzIJ.~t.f1 . 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 , 1 . . .' .. >> Consolidatina Police Services~ An IACP Plannina ADDroach Executive Brief . . ) 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, ~ ~ 2 ~ ~ , , . . Consolidatlna Police Services: An IACP Plannlna ADDroach Executive Brief . . 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. . . , , I} , , . ... .. ~ II . ~ ~ 110 . , .. ~ , . ~ .~ , '\ , , ~ i ) , , , \ \ \ ~ : I 3 \ , , ~ . ConsolidatlnQ Pollee Services: An IACP PlannlnQ Approach Executive Brief j . t:I'~~~'l~[PAj'IN~c'CPN$Ql:iDATIQN;<e9t~Nff!.~I~~':1'AtJ!1A"~e:RJ.Z4NNJN~lMOP'Et.;1f~1 . . 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. , , , 4 , . \ \ --...-.---- .------ ----.- -,---,---......-.--- t . 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 . . .. , --- . 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. ~ ~ 'I 6 . . . ,. . - ------~---._-- ------'--"~."-'~-'-''''""'--''-~~'---';--''-~-,-- . . Consolidatina Police Services: An IACP Plannina ADDroach Executive Brief . . 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? ~ ~ I) 7 , & . . . 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 \ 8 \ \ ' ' -A-_,__..~ _.__._....._-~...-. . , 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 , , 9 , " , . 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? , ) \ 10 \ , , \ --.- ~-' . . ConsolidatinQ Police Services: An IACP PlanninQ Approach Executive Brief . . 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 ~ ~ " -,,--,. r . . 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 . , " -r . . 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 ~ , . , "--_... -.- ----------------..-- 1- It ~ 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. ~ ~ . - . . . . . . . . . . . . . a .. a .. .. .. .. .. .. - . - ~ a J -- J -" ~ , ~ ~ ~ , ~ 14 , , ' , --------~. - ---.--- -'--- .., . ~ 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. ... - .. - .., ~ .. -! .. --' II. --' ., ~ ~ ~ ~ ~ 15 ~ . ' ' -..---....- - --,._-~ ,-- t ~ . 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 . .. .. .. a a a ! a .- .- a .. - ,.. - .. - ,.. ~ .. J ~ '. ~ - ~ - ... ...,. ... -.- ... -=' ,... 16 -J ~ e .' -- -- --.--------...,----- -_.-._---~- - - -- --.-.- j - .._---~ - 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.--- -. ~-._.~._-._-_. ----- ...-