New CITY COUNCIL & SUCCESSOR AGENCY MEETING AGENDA … · 2020. 8. 21. · On July 30 2020, the Applicant submitted a letter requesting a one-time extens ion for Tentative Tract Map

THE AUGUST 25th, 2020 CITY COUNCIL MEETING WILL BE CONDUCTED PURSUANT TO THE PROVISIONS OF THE GOVERNOR’S EXECUTIVE ORDER N-29-20

THE CITY COUNCIL CHAMBERS WILL BE CLOSED TO THE PUBLIC Pursuant to the Governor’s Executive Order dated March 17, 2020, the City Council is authorized to hold public meetings via teleconferencing and to make meetings accessible electronically to all members of the public seeking to observe and to address the legislative body. All Brown Act provisions that require the physical presence of City Councilmembers or the public for City Council meetings are waived. Please review page five of this document for instructions on public participation. A public agenda packet is available for review on the City’s website www.sandimasca.gov or by contacting the City Clerk’s Office at [email protected]. CITY COUNCIL: Mayor Emmett Badar, Mayor Pro Tem Ryan A. Vienna, Councilmember Denis Bertone Councilmember John Ebiner, Councilmember Eric Weber 1. CALL TO ORDER AND FLAG SALUTE

2. ROLL CALL 3. ORAL COMMUNICATIONS (Members of the audience are invited to address the City

Council on any item not on the agenda. Under the provisions of the Brown Act, the legislative body is prohibited from taking or engaging in discussion on any item not appearing on the posted agenda. However, your concerns may be referred to staff or set for discussion at a later date. If you desire to address the City Council on an item on this agenda, other than a scheduled public hearing item you may do so at this time or ask to be heard when that agenda item is considered. Comments on public hearing items will be considered when that item is scheduled for discussion. The Public Comment period is limited to 30 minutes. Each speaker shall be limited to three (3) minutes.)

a) Members of the audience

4. CONSENT CALENDAR (All items on the Consent Calendar are considered to be routine and will be enacted by one motion unless a member of the City Council requests separate discussion.) Resolutions read by title, further reading waived, passage and adoption recommended as follows:

CITY COUNCIL & SUCCESSOR AGENCY

MEETING AGENDA TUESDAY AUGUST 25th, 2020 7:00 P. M.

SAN DIMAS COUNCIL CHAMBER 245 EAST BONITA AVENUE

http://www.sandimasca.gov/

mailto:[email protected]

City Council Agenda August 25, 2020 Page 2

a. Approval of Warrant Register RESOLUTION 2020-49, dated August 31st, 2020 in the

amount of $509,242.03.

b. Time Extension for Tentative Tract Map 73584-216 N. Walnut Avenue, 300 N. Walnut Avenue, 343 Moore Lane, and unaddressed properties (APN’S: 8390-009-030, 8390-009-013, 8390-009-010, 8390-009-011, and 8390-009-031)

RECOMMENDED ACTION: Staff recommends the City Council approve a 24-month time extension for Tentative Tract Map 73584 (TTM 16-01).

c. Award Construction Contract 2020-04, Civic Center Hardscape Improvements to FS Contractors, Inc. RECOMMENDED ACTION:

1. Award the Construction Contract 2020-04 Civic Center Park Hardscape

Improvements to FS Contractors, Inc. as the lowest responsive bid for the bid amount of $138,590.00.

2. Authorize a total project budget of $179,300.00 ($138,590.00 construction bid,

geotechnical testing, survey, landscaping and 12% contingency).

d. Maintenance Contract 2020-02 Traffic Signal/Street Light Maintenance Contract Rejection of All Bids

RECOMMENDED ACTION: Staff recommends Council reject all bids for MC 2020-02 Traffic Signal/Street Light Maintenance Services.

e. Summary of Senate Bill 1120

RECOMMENDED ACTION: Staff recommends that the City Council submit a Letter of Opposition for Senate Bill 1120.

END OF CONSENT CALENDAR RECOMMENDED ACTION: Approve consent calendar as presented. 5. OTHER BUSINESS – SUCCESSOR AGENCY

Consideration of an Exclusive Negotiating Agreement (ENA) With Pioneer Square, LLC for the Development of a Mixed-Use Project at Properties Located at 344 West Bonita Avenue (APN: 8386-02-913), 108 North Cataract Avenue (APN: 8390-021-916), and 112 North Cataract Avenue (APN: 8390-021-915)

RECOMMENDED ACTION: Staff recommends the Successor Agency:

City Council Agenda August 25, 2020 Page 3

1. Approve the Exclusive Negotiating Agreement (ENA) between the Successor Agency to the Former San Dimas Redevelopment Agency and Pioneer Square, LLC; and

2. Authorize the Executive Director to execute the ENA, in a form acceptable to the City Attorney, on behalf of the Successor Agency.

6. OTHER BUSINESS – CITY COUNCIL

a. Conditional Settlement and Release Agreement with Southwest Voter Registration Education Project Regarding Alleged Violation of the California Voting Rights Act; and Resolution Declaring Intention to Transition From At-Large To District-Based City Council Elections

RESOLUTION 2020-50, DECLARING INTENTION TO TRANSITION FROM AT-LARGE TO DISTRICT-BASED CITY COUNCIL ELECTIONS

RECOMMENDED ACTION: Staff recommends the City Council:

1. Approve the Conditional Settlement Agreement; and 2. Adopt the Resolution Declaring Intention to Transition From At-Large To District-

Based City Council Elections.

b. COVID-19 UPDATE

c. Gold Line Update

7. ORAL COMMUNICATIONS a. Members of the Audience (Speakers are limited to five-minutes or as may be

determined by the Chair.)

b. City Manager

c. City Attorney

d. Members of the City Council

1) Meetings attended at the expense of the local agency

2) Individual Members' comments, updates, requests

8. CLOSED SESSION – CITY COUNCIL

CONFERENCE WITH LEGAL COUNSEL—ANTICIPATED LITIGATION Significant exposure to litigation pursuant to Government Code section 54956.9(d)(2): Two cases.

City Council Agenda August 25, 2020 Page 4 9. ADJOURNMENT

The next meeting will be September 8th, 2020 at 7:00 p.m.

Notice Regarding Americans with Disabilities Act: In compliance with the ADA, if you need assistance to participate in a city meeting, please contact the City Clerk’s Office at (909) 394-6216. Early notification before the meeting you wish to attend will make it possible for the City to make reasonable arrangements to ensure accessibility to this meeting [28 CFR 35.102-35.104 ADA Title II].

Copies of documents distributed for the meeting are available in alternative formats upon request. Any writings or documents provided to the City Council regarding any item on this agenda will be made available for public inspection at the Administration Counter at City Hall during normal business hours. In addition, most documents are posted on the City’s website at www.sandimasca.gov Posting Statement: I declare under penalty of perjury that on August 21st, 2020, I posted a true and correct copy of this agenda on the bulletin board at the Civic Center Plaza of City Hall at 245 E. Bonita Ave., and on the City’s website www.sandimasca.gov/agendas-minutes/ as required by law. August 21st, 2020 _____________________________ Date Debra Black, City Clerk

https://sandimasca.gov/

https://sandimasca.gov/agendas-minutes/

City Council Agenda August 25, 2020 Page 5 In order to minimize the spread of the COVID 19 virus, the August 25th, 2020 City Council meeting will be conducted as follows:

1. The City will not make available a physical location for the public to observe the meeting and offer public comment. The City Council Chambers will be closed to the public.

2. Members of the public may observe the City Council meeting live on the City of San

Dimas website at www.sandimasca.gov or on KWST Channel 3. To view from the website, select the Watch City Council Meetings blue button from the home page.

3. If you wish to make a comment during Oral Communications or on a specific agenda item, you are strongly encouraged to submit your comment via email by 5:00 P.M. on Tuesday, August 25th, 2020 to the City Clerk at [email protected]

4. If you are watching the live stream and wish to make a comment during Oral Communications or on a specific agenda item as it is being heard, please submit your comment by email, limited to 250 words or less, to the City Clerk at [email protected] before the closure of public comment on the agenda item. Every effort will be made to read your comment into the record, but some comments may not be read due to technical issues or time limitations set by the City Council.

5. You may also call in to make a comment during Oral Communications or on a specific agenda item as it is being heard. You may call (909) 394-6206 before the closure of public comment on the agenda item.

6. In compliance with the Americans with Disabilities Act, if you need special assistance to

participate in the City Council meeting, please contact the City Clerk's Office at least 24 hours prior to the meeting to ensure reasonable accommodations can be considered and arranged to provide accessibility to participate in the meeting.

The City of San Dimas thanks you in advance for taking all precautions to prevent spreading the COVID 19 virus.

http://www.sandimasca.gov/

https://www.youtube.com/channel/UC5JuGp_ZnyKNab6zGsrI2cg



RESOLUTION 2020-49

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN DIMAS, CALIFORNIA, APPROVING CERTAIN DEMANDS FOR THE MONTHS OF JULY AND AUGUST 2020

WHEREAS, the following listed demands have been audited by the Administration Services Manager; and

WHEREAS, the Administration Services Manager has certified as to the availability of funds for payment thereto; and

WHEREAS, the register of audited demands has been submitted to the City Council for approval.

NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of San Dimas does hereby approve the Warrant Register of August 31st, 2020 in the amount of $509,242.03.

PASSED, APPROVED AND ADOPTED this 25th, day of August 2020.

_____________________________ Emmett G. Badar, Mayor

ATTEST:

_________________________________ Debra Black, City Clerk

I HEREBY CERTIFY that Resolution 2020-49 was approved by vote of the City Council of the City of San Dimas at its regular meeting of August 25th, 2020 by the following vote:

AYES: NOES: ABSENT: ABSTAIN:

Debra Black, City Clerk

Item 4a Page 1

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Agenda Item Staff Report

To: Honorable Mayor and Members of City Council For the meeting of August 25, 2020

From: Brad McKinney, Interim City Manager

Initiated by: Marco A. Espinoza, Senior Planner

Subject: Time extension request for Tentative Tract Map No. 73584 (TTM 16-01) _____________________________________________________________________________

DISCUSSION/ANALYSIS

On August 28, 2018 the City Council approved Tentative Tract Map 73584 (TTM 16-01) located at 216 N. Walnut Avenue, 300 N. Walnut Avenue, 343 Moore Lane, and unaddressed properties (APN’S: 8390-009-030, 8390-009-013, 8390-009-010, 8390-009-011, and 8390-009-031). Tentative Tract Map 73584 proposes to subdivide 3.17 acres into 12 single-family residential lots. The approval of the Tentative Tract Map is valid for a period of 24-months unless the Applicant requests an extension for an additional 24-month prior to the expiration date.

On July 30 2020, the Applicant submitted a letter requesting a one-time extension for Tentative Tract Map 73584 pursuant to Government Code Section 66452.11 to extend the map’s expiration date to August 28, 2022. The Applicant is requesting this additional time to comply with the conditions of approval and to process recordation of the final tract map.

RECOMMENDATION

Staff recommends the City Council approve a 24-month time extension for Tentative Tract Map 73584 (TTM 16-01).

Respectfully submitted,

Marco A. Espinoza Senior Planner

Item 4b Page 1

Attachments: Exhibit A Applicant’s Time Extension Request Letter Exhibit B Tentative Tract Map 73584 (TTM 16-01) Exhibit C Resolution No. 2018-47

Item 4b Page 2

Contractors, Inc.

City of San Dimas

245 East Bonita Ave.

San Dimas, CA 91773

Att: Henry Noh (Community Development Director)

Re: Tentative Map 73584 "Time Extension"

Dear Henry,

_7-30-2020

As you may know the COVID-19 Pandemic has caused a major slowdown of just about all industries.

Project entitlements, & construction lending are especially hard hit. Some new home buyers are also on

a holding pattern to ensure their jobs will return to normal. As a result of all this we need more time to

obtain all items necessary to record the Final Map.

Per the Conditions of Approval for Tentative Tract Map 73584 (TTM 16-01) condition #5 (below), I would

like to request a 24-month extension to ensure plenty of time to obtain all items necessary to record the

Final Map. Please let me know if or what the processing fee is, we will pay it immediately.

5. The Tentative Map shall expire twenty-four months following approval, unless anextension fur a period,or periods not to exceed a total of twenty-four months ·is 9 .. l\ ... ,igranted by the City Council. A subdivider may request an extension by writtena plication to the Director of the Department of Community Development. Such (,.::,,o A��lf

A

application shall be filed at least thirty days before the Tentative Map is due to btrrbexpire. Requests for all extensions shall be accompanied by a processing fee aspr cribed by resolution of the City Council.

Respectfully Yours,

,"l_,,L/41 John Begin

Applicant's Agent

133 East Bonita Avenue, Suite #201, San Dimas, Californi� 91773-3004 • 909.592.3900 • 909.394.6733 fax

Exhibit A

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Exhibit B

RESOLUTION 2018-47

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN DIMAS,

COUNTY OF LOS ANGELES, APPROVING TENTATIVE TRACT MAP 73584

(TTM 16-01), A REQUEST TO CONSOLIDATE FOUR EXISTING PARCELS

WITH A TOT AL AREA OF 3.17 ACRES TO SUBDIVIDE INTO 12

RESIDENTIAL PARCELS AT 300 NORTH WALNUT A VENUE, 343 MOORE

LANE, AND UNADDRESSED PROPERTIES (APN'S: 8390-009-013, 8390-009-

010, 8390-009-011 AND 8390-009-031)

WHEREAS, an application for a Tentative Tract Map has been duly filed by:

John Begin JB Development

133 E. Bonita Avenue, Suite 201 San Dimas, CA 91 773

WHEREAS, the applicant is requesting the Tentative Tract Map to;

Consolidate four existing parcels with a total area of 3.17 acres to subdivide into 12

residential parcels.

WHEREAS, the Tract Map was submitted to appropriate agencies as

required under Section 17.12.030 of the San Dimas Municipal Code with a request for

their report and recommendations; and

WHEREAS, notice was duly given of the public hearing on the matter and that

public hearing was held on June 21, 2018 and continued to July 19, 2018, at the hour of

7:00 p.m., with all testimony received being made a part of the public record; and

WHEREAS, at its meeting on July 19, 2018, the Planning Commission adopted a

resolution recommending approval of the tentative tract map to the City Council; and

WHEREAS, notice was duly given of the City Council public hearing on the

matter and that public hearing was held on August 14, 2018 and continued to August 28,

2018, with all testimony received being made a part of the public record; and

WHEREAS, Tentative Tract Map No. 73584 is proposed in conjunction with a

request to amend the zoning land use classification from Single Family 16,000 to Single

Family 7,500 (Zone Change 16-01) and a Municipal Code Text Amendment No. 18-01 is

being proposed to ensure compatibility with the surrounding neighborhood; and

WHEREAS, pursuant to and in accordance with the provisions of the California

Environmental Quality Act (Public Resources Code Section 2100 et seq.; herein referred

to as "CEQA"), the State of California Guidelines for Implementation of the California

Environmental Quality Act, the City is the "lead agency" for the preparation and

consideration of environmental documents for the Proposed Project; and

Exhibit C Page 1

Resolution 2018-47 Page2 Tentative Tract Map No. 73584 (16-01)

WHEREAS, in conformance with CEQA and CEQA Guidelines, a draft

Mitigated Negative Declaration ("MND") was prepared to evaluate the physical environmental impacts of the Proposed Project; and

WHEREAS, in conformance with CEQA and CEQA Guidelines a Mitigation Monitoring and Reporting Plan has been prepared for the Proposed Project and includes mitigation measures that are specific to the Proposed Project; and

WHEREAS, the City Council has carefully considered all pe1iinent testimony and the staff report presented by staff at the public hearings.

NOW, THEREFORE, pursuant to the California Government Code Section 66410 et seq., based on the entire record before the City Council and all written and oral

evidence presented to the City Council, the City Concil finds as follows:

A. That the proposed Tract Map is consistent with the General Plan and theapplicable Land Use Zone.

The proposed Tentative Tract Map No. 73584 is consistent with the City of SanDimas General Plan Land Use Designation Single Family Low, which allows adensity of 3 .1-6 units per acre. The land use designation of Single Family Lowis intended to provide for single family detached units.

The Proposed Project and map are consistent with the General Plan as follow:

Land Use Element Goal L-4: Plan and create an urban form that efficientlyutilizes urban infrastructure and services. Plan for orderly growth rather than

"leap frog" development.

Objective 4.1: Promote future land use and development patterns which reducecosts of infrastructure construction, encourages transit to make better use of

existing facilities, and achieve a good match between future growth and phasingof existing facilities or expansion of new ones.

Objective 4.2: Consider each development proposal in a larger development

context. Understand how each development contributes to certain capacitythresholds for circulation, community services and utilities.

Housing Element Goal 2: Provide adequate housing site to accommodate

Regional Housing Needs.

Policy 2.1: Provide site opportunities for development of housing that respondsto diverse community needs in terms of housing type, cost and location,

emphasizing locations near services and transit that promote walkability.

Exhibit C Page 2

Resolution 2018-47 Page 3 Tentative Tract Map No. 73584 (16-01)

Policy 2.3: Continue to encourage design consistent with the General Plan and appropriate to the community context.

The proposed Tract Map is located within a developed area where infrastrncture and utilities are readily available to serve future development.

With the approval of the Municipal Code Text Amendment and Zone Change, the proposed Tentative Tract Map will be compatible with existing residential uses

surrounding the project site.

As part of the Proposed Project, an overlay zone has also been drafted that would adopt standards restricting unit size, lot coverage and setbacks to ensure that the

newly created parcels are developed in a manner that are consistent with the area and surrounding neighborhoods

The Tentative Map will be consistent with the General Plan and the Land Use

Zone. The Proposed Project/Map proposes a density of3.78 units per acre.

C. That the site is physically suitable for the type of development proposed.

The approximately 3.17 acre site is adequate in size for the proposed 12residential parcels. All 12 parcels would be developed in the future with singlefamily detached units. The proposed density is 3. 78 units per acre. The site canadequately accommodate the proposed public street, adequate vehicular andemergency vehicle access, infrastrncture and all on-site and off-site improvementsrequired of the City of San Dimas Municipal Code.

D. That the site is physically suitable for the proposed density of the development.

The site is physically suitable for the type and density of development proposed inthe Tentative Tract Map. The proposed 12-lot subdivision is surrounded by

residential uses on all sides Therefore, the propoded infill development would becompatible with the existing fabric of the neighborhood and infrastrncture caneasily be extended to the project site to serve the new land uses.

E. That the design of the subdivision or the proposed improvements is not likely tocause substantial environmental damage or substantially and avoidably injurewildlife or their habitat.

The subdivision design and improvements proposed in the Tentative Tract Mapare not likely to cause substantial environmental damage nor substantially injurefish or wildlife or their habitat because after CEQA compliance, theenvironmental impacts to any significant habitat of a rare or endangered speciesof plant, animal, or insect, or any fragile or unique biotic community are at a lessthan-significant level. As such, it is not anticipated that the Proposed Project will

cause a substantial environmental injure to wildlife or their habitat.

Exhibit C Page 3


F. That the design of the subdivision or the type of improvements are not likely tocause serious public health problems.

The subdivision design and type of improvements proposed in the Tentative Tract Map are not likely to cause serious public health problems because all development and public improvements will be performed per the requirements of all applicable standards and codes, including the zoning and building codes, and mitigation measures identified in the Mitigated Negative Declaration

G. That the design of the subdivision or the type of improvements will not conflictwith easements, acquired by the public for access through or use of propertywithin the proposed subdivision.

No easements of record or easements established by judgment of a court of

competent jurisdiction for public acess across the site have been disclosed and the

City does not otherwise have any constructive or actual knowledge of any such easements. Additionally, the subdivision will not conflict with the private easements on Moore Lane.

H. That the discharge of waste from the proposed subdivision into the existing sewersystem will not result in a violation of existing requirements prescribed by theRegional Water Quality Control Board. Conditions are imposed to protect thepublic health, safety and general welfare and to implement the intent and purposeof the General Plan.

The discharge of waste into an existing sewer system from development proposed in the Tentative Tract Map will not cause a violation of existing requirements prescribed by the local water quality control board because future development must comply with County Sanitation Districts and Los Angeles County Public Works Department requirements placed on the project at the Development Plan Design level of project review.

NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of San Dimas does hereby approve Tentative Tract Map No. 73584 (16-01) subject to those conditions of approval in Exhibit "A".

Exhibit C Page 4


PASSED, APPROVED AND ADOPTED this 28th day of August, 2018.

Curtis W. Morris, Mayor

Debra Black, Assistant City Clerk

I, Debra Black, Assistant City Clerk, hereby certify that Resolution 2018-47 was adopted by the City Council of San Dimas at its regular meeting of August 28t\ 2018 by the following vote:


Badar, Bertone, Vienna Ebiner None Morris

D�bra Black, Assistant City Clerk

Exhibit C Page 5

Resolution 2018-4 7 Page 6 Tentative Tract Map No. 73584 (16-01)

EXHIBIT A

Conditions of Approval for

Tentative Tract Map 73584 (TTM 16-01)

1. The Applicant/Developer shall agree to defend at his sole expense any actionbrought against the City, its agents, officers or employees because of the issuance ofsuch approval, or in the alternative, to relinquish such approval. The applicant shallreimburse the City, its agents, officers or employees for any Court costs andattorney's fees which the City, its agents, officers or employees may be required bya court to pay as a result of such action. The City may, at its sole discretion,participate at its own expense in the defense of any such action but suchparticipation shall not relieve applicant of his obligations under this condition.

2. The Applicant/Developer shall be responsible for any City Attorney costs incurredby the City for the project, including, but not limited to, consultations, and thepreparation and/or review of legal documents. The applicant shall deposit fundswith the City to cover these costs in an amount to be determined by the City.

3. The Applicant/Developer shall comply with all requirements of the Single-Family7,500 and Development Standards Overlay Zone No. 2 zones. Prior to recordationof the final map, the Applicant/Developer shall demonstrate that all lots meet theminimum lot size requirement of 7,500 square feet net.

4. The approval of a tentative map and/or tentative site plan does not constituteapproval of proposed improvements as to size, design, materials, or location, unlessspecifically addressed in these conditions of approval.

5. The Tentative Map shall expire twenty-four months following approval, unless anextension for a period or periods not to exceed a total of twenty-four months isgranted by the City Council. A subdivider may request an extension by written

application to the Director of the Department of Community Development. Suchapplication shall be filed at least thirty days before the Tentative Map is due toexpire. Requests for all extensions shall be accompanied by a processing fee asprescribed by resolution of the City Council.

6. The Applicant/Developer shall sign an affidavit accepting all Conditions and allStandard Conditions before recordation of the Final Map.

7. The Applicant/Developer shall comply with all City of San Dimas Business License

requirements and shall provide a list of all contractors and subcontractors that aresubject to business license requirements.

8. The Applicant/Developer shall submit a construction access plan and schedule forthe development of all lots for Directors of Development Services and Public

Works approval, including, but not limited to, public notice requirements, specialstreet posting, phone listing for community concerns, hours of construction activity,dust control measures, and security fencing.

Exhibit C Page 6


9. The review and approval of the following plans shall be deferred to theDevelopment Plan Review Board upon review of the related house plans:

a. House plansb. Wall and fence plans

1. The Applicant/Developer shall adequately address all property lineencroachments to the satisfaction of the Development Services

Director prior to recordation of the Final Map.11. The Applicant/Developer shall install minimum 6' decorative

block walls along the project perimeter and interior between lots,with the exception of the rear walls for Lots 8-12 fronting Moore

Lane, which shall consist of decorative openwork walls within theproperty in conjunction with view-obscuring landscaping toprovide a buffer.

111. Decorative block material, such as slumpstone, split face, etc.,

shall be incorporated and decorative material/finish shall beapplied to both sides of the wall, unless otherwise specified by the

Development Plan Review Board. All walls and pilasters shallinclude a decorative cap to be reviewed and approved by thePlanning Division prior to installation.

1v. If a double wall condition would result, the developer shall make a

good faith effort to work with the adjoining property owners to provide a single wall. The Applicant/Developer shall notify, by

mail, all contiguous property owners at least 30 days prior to the removal of any existing walls/fences along the project's perimeter.

c. Tree removal and tree replacement plansd. Landscaping plans

e. Grading plans

10. The Applicant/Developer shall underground all new utilities, and utility drops, andshall underground all existing overhead utilities within the boundaries of the tract to

the closest power pole off-site to meet the intent of the Code and City practice tothe satisfaction of the Director of Community Development

11. During grading and construction phases, the construction manager shall serve as the

contact person in the event that dust or noise levels become disruptive to localresidents. A sign shall be posted at the project site with the contact phone number.

12. The project shall comply with the state Model Ordinance adopted pursuant to the

California Solid Waste Reuse and Recycling Access Act of 1991(AB341). Thisshall include adequate, accessible, and convenient areas for collecting and loading

recyclable materials. A residential recycling program shall be implemented incoordination with the trash company. Program shall include weekly collection of

recyclable material using any combination of bins or 96-gallon waste containers insufficient numbers to contain recyclables generated each week by all units.

13. The Applicant/Developer shall meet any and all monitoring or reportingrequirements necessary to ensure compliance with mitigation measures contained in

Exhibit C Page 7


the Mitigated Negative Declaration of Enviromnental Impact as determined by the

City, including, but not limited to, entering into an agreement to perform and/or monitor and report during construction.

14. The project shall comply with all applicable environmental mitigation measuresidentified in the Mitigated Negative Declaration of Enviromnental Impact.

ENGINEERING DIVISION - (909) 394-6240

15. The Applicant/Developer shall provide a signed copy of the City's certification

statement declaring that the contractor will comply with Minimum BestManagement Practices (BMPs) required by the MS4 permit for Los Angeles Countyas mandated by the National Pollutant Discharge Elimination System (NPDES).

16. The Applicant/Developer shall not commence any on-site improvements until suchtime as grading and/or improvement plans are approved and grading and/orencroachment permits have been issued.

17. The Applicant/Developer shall install sanitary sewers to serve the entire

development to the specifications of the City Engineer. The Applicant/Developershall provide sewer analysis to verify existing sewer system can accommodate the

proposed flows.

18. The Applicant/Developer shall Contact the Los Angeles County Sanitation Districtfor any required annexation, extension, or sewer trunk fee. Proof ofpayment/clearance is required before the City will issue any sewer permit.

19. The Applicant/Developer shall provide drainage improvements to carry runoff ofstorm waters in the area proposed to be developed, and for contributory drainage

from adjoining properties to be reviewed and approved by the City Engineer. TheApplicant/Developer shall make a good faith effort to negotiate with thedownstream property owner for all required downstream storm drain improvements.The proposed drainage improvements shall be based on a detailed Hydrology Studyconforming to the current Los Angeles County methodology. The developed flowsoutletting into the existing downstream system(s) from this project cannot exceed

the pre-existing storm flows. Hydrology Study shall incorporate existing drainageflows from the properties directly to the north and east of the proposed

development.

20. The Applicant/Developer shall provide street name signs, stop signs, and striping in

accordance with the standards of the City.

21. The Applicant/Developer shall provide full street improvements on all streetswithin the limits of the development. Improvements to include curbs and gutters,sidewalks, medians, and paving according to City standards, as shown in the

following table:

Exhibit C Page 8


Street Name

New Street (Ext of 3rd)

Walnut Ave

Moore Ln

Notes:

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("t) O" ("t) • I !"'I- ("t)

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Ro

✓ ✓ ✓ * ** ***

**** ✓ ** ✓

✓ + **** *****

Provide ADA compliant path/ramps at intersection of New Street and Walnut Ave

*Provide ADA compliant path across new approaches

**Provide Decorative/Nostalgic LED Lights per City Std

***Provide street trees. Provide an easement to the City of San Dimas for the maintenance of street trees.

****Pave to centerline

*****Provide Fire Department crash gate and Knox box at east end

+ 18" of concrete shall be extended beyond curb to propertyline

22. The Applicant/Developer shall offer to dedicate all street right-of-way as shown on

the Tentative Map.

23. In addition to improving Moore Lane, the Applicant/Developer shall pursue thetransfer of the Moore Lane surplus to the property owners to the south side of thedevelopment who utilize Moore Lane for access. If not accepted, the DevelopmentServices Director may waive this condition provided that a deed restriction is

recorded and new property owners purchasing Lots 8-12 are notified of theirownership, maintenance responsibility, and vehicular access prohibition of Moore

Lane.

24. The new street as shown on the Tentative Map shall be named Third Street.

25. Fire hydrants shall be located as required by the Los Angeles County FireDepartment. The minimum fire flow of gallons per minute and pressure shall be beestablished by the Los Angeles County Fire Department.

26. The Applicant/Developer shall provide mailboxes per City of San Dimas standards.Mailbox locations are subject to the approval of the local postmaster and the CityEngineer.

27. The Applicant/Developer shall submit water plans to be reviewed and approved bythe City Engineer and the Los Angeles County Fire Department.

Exhibit C Page 9


28. The Applicant/Developer shall be responsible for any repairs within the limits ofthe development, including, but not limited to, streets and paving, curbs and

gutters, sidewalks, and street lights as determined by the City Engineer and PublicWorks Director. Any existing sidewalk, curb, and gutters cracked, broken, holdingwater, or not meeting ADA standards within the limits of the subdivision shall beremoved and replaced per the direction of the Public Works Director.

29. All work adjacent to or within the public right-of-way shall be subject to review andapproval of the Public Works Director and the work shall be in accordance with

applicable standards of the City of San Dimas; i.e. Standard Specifications forPublic Works Construction (Green Book) and the California Manual of UniformTraffic Control Devices (CA MUTCD), and further that the construction equipmentingress and egress be controlled by a plan approved by Public Works.

30. For projects that disturb one (1) acre or greater of soil, or projects that disturb lessthan one acre but are part of a larger common plan of development that in totaldisturbs one or more acres, the project must obtain coverage under the GeneralPermit for Discharges of Storm Water Associated with Construction Activity,Construction General Permit Order 2012-0006-DWQ (as amended by all futureadopted Construction General Permits). The Construction General Permit requiresthe development and implementation of a Storm Water Pollution Prevention Plan

(SWPPP). Developer must submit a Notice of Intent and Waste Discharger'sIdentification (WDID) number as evidence of having applied with the Construction

General Permit before the City will issue a grading permit. The project proponentis ultimately responsible to comply with the requirements of Order No. 2012-0006-DWQ, however, the City shall have the authority to enter the project site, review theproject SWPPP, and require modifications and subsequent implementations to theSWPPP in order to prevent polluted runoff from leaving the project site onto public

or private property.

31. For all projects subject to Low Impact Development (LID) regulations,

Applicant/Developer must submit a site-specific drainage concept and stormwaterquality plan to implement LID design principles. Rain gardens or any type of aboveground treatment will generally not be acceptable; LID devices shall beunderground. LID devices shall be reviewed and approved by the City Engineer.

In addition, subdivision shall incorporate the City's Green Street Policy to thesatisfaction of the City Engineer and Public Works Director.

32. A fully executed "Maintenance Covenant for LID Requirements" shall be recordedwith the L.A. County Registrar/Recorder and submitted to the Public WorksDepartment prior to the Certificate of Occupancy. Covenant documents shall berequired to include an exhibit that details the installed treatment control devices as

well as any site design or source control Best Management Practices (BMPs) forpost construction. The information to be provided on this exhibit shall include, butnot be limited to:

i. 8 ½" x 11" exhibits with record property owner information.

Exhibit C Page 10


11. Types of BMPs (i.e., site design, source control and/or treatmentcontrol) to ensure modifications to the site are not conductedwithout the property owner being aware of the ramifications toBMP implementation.

iii. Clear depiction of location of BMPs, especially those locatedbelow ground.

iv. A matrix depicting the types of BMPs, frequency of inspection,type of maintenance required, and if proprietary BMPs, thecompany information to perform the necessary maintenance.

v. Calculations to support the sizing of the BMPs employed on theproject shall be included in the report. These calculations shallcorrelate directly with the minimum treatment requirements of thecurrent MS4 permit. In the case of implementing infiltrationBMPs, a percolation test of the affected soil shall be performed andsubmitted for review by the City Engineer.

v1. This document shall be reviewed by and concurred with Public Works to ensure the covenant complies with the MS4 Permit.

33. Improvement plans and necessary letters of credit, cash, and/or bonds to secure theconstruction of all streets, storm drains, water, sewer, grading, and multi-use trailsshall be submitted and approved by the City Engineer, and the subdivisionagreement and other required agreements approved by City Attorney, prior to therecordation of the Final Map.

34. A Final Map prepared by or under the direction of a Licensed Land Surveyor must

be processed through the City Engineer prior to being filed with the CountyRecorder.

35. All easements existing at the time of the Final Map approval must be accounted foron the approved Tentative Map. This includes the location, owner, purpose, andrecording reference for all existing easements. If an easement is blanket or

indeterminate in nature, a statement to that effect must be shown on the TentativeMap in lieu of its location. Clarify ownership, limitations, and use of Moore Lane.

36. The Final Map shall not be approved for recordation until either:

a. A subdivision agreement is entered into along with the necessary bondsand insurance as required by the City. Said agreement shall be in a formacceptable to the City Attorney; or

b. Improvement plans are approved and the improvements are constructedand accepted as complete. In this case the subdivider shall enter into anagreement concurrent with the recordation of the Final Map.

37. All site, grading, landscape & irrigation, and street improvement plans shall becoordinated for consistency prior to the issuance of any permits.

Exhibit C Page 11


38. A preliminary title report and guarantee is required and such document shall showall fee interest holders; all interest holders whose interest could ripen into a fee; all

trust deeds, together with the name of the trustee; and all easement holders. Theaccount for this title report should remain open until the final map is filed with the

County Recorder.

PARKS AND RECREATION - (909) 394-6230

39. The Applicant shall provide street trees, with permanent irrigation system,throughout the tract. The species, container size, and location shall be designated by

the City, as approved by the City arborist.

40. The Applicant/Developer shall comply with City regulations regarding payment ofPark, Recreation and Open Space Development Fees per SDMC Chapter 3.26. Feesshall be paid prior to issuance of building permits.

41. The Subdivision Applicant/Developer shall comply with Chapter 17.36 of the SanDimas Municipal Code regarding Park Land Dedication (Quimby Act). The City

may require fees in lieu ofland or a combination thereof based on the market valueof the land to be dedicated. Fees shall be paid prior to recordation.

Exhibit C Page 12


To: Honorable Mayor and Members of City Council For the Meeting of August 25, 2020


Initiated by: Shari Garwick, Director of Public Works

Subject: Civic Center Park Hardscape Improvements ______________________________________________________________________________

BACKGROUND

Civic Center Park is located in the Town Core section of the City, adjacent to City Hall/Civic Center and the Senior Citizens Community Center complexes. It is one of the heaviest used parks in the City hosting weekly events in the summer such as Music and Movies in the Park, and many annual events such as the City’s Birthday Barbeque, Family Festival, Spooktacular and staging for the Holiday Extravaganza. Currently there is existing sidewalk only on the south side of the park.

At the May 12, 2020 City Council meeting, Council approved $432,000.00 in lighting, electrical, and concrete improvements for three sides (North, East and West) of Civic Center Park as well as the concrete fitness equipment pad, shade canopy foundations and ADA Parking Stall. This work will be separated into two different contracts. The first contract for the electrical and lighting improvements was awarded to Macadee Electrical Construction Inc. at the July 14, 2020 Council meeting with a total project budget of $209,847.36. The electrical work is nearing completion.

The Civic Center Park Hardscape Improvement Project will construct approximately 7,250 square feet of new concrete sidewalk to create a connected ADA accessible walking path completely around Civic Center Park. The project also includes constructing a 55’ x 48’ concrete fitness equipment pad, shade structure foundations and will add decomposed granite to all new parkways. Additionally, there are eleven new parkway trees being installed.

SUMMARY On August 13, 2020, the City Clerk opened four bids for Construction Contract 2020-04, Civic Center Park Hardscape Improvements Project. The request is for the City Council to award Construction Contract 2020-04, Civic Center Park Hardscape Improvements to FS Contractors, Inc. for the bid amount of $138,590.00. The total project budget would be $179,300.00 which includes the project bid, geotechnical testing, survey, design, landscaping and 12% contingency.

Item 4c Page 1

DISCUSSION/ANALYSIS Bid Results and Evaluation On August 13, 2020, the City Clerk opened informal bids for Construction Contract 2020-04, Civic Center Park Hardscape Improvements. The preliminary bid results are as follows:

Contractor Base Bid 1 FS Contractors, Inc. $ 138,590.00 2 Grigolla and Sons Co, Inc. $ 155,923.00 3 Act 1 Construction $ 190,725.00 4 C.S. Legacy $ 218,650.00

Following the bid results, staff reviewed the bid proposal provided by the lowest responsible bidder, FS Contractors, Inc. and verified that the contractor’s bid bond is issued by an admitted surety, as required by Public Contract Code 20170. It was confirmed through the State Contractor’s License Board that the contractor’s license 1005940, Class A, C-8, and C-27 are current and active with an expiration date of 07/31/2021. The contractor is registered through the Department of Industrial Relations as required by law (Registration No. 1000033438). Staff contacted several of the references provided with the bid and the consensus was that FS Contractors, Inc. has successfully completed concrete projects for multiple agencies. Funding

The total project budget is within the amount allocated for Fund 22 - Open Space District #2 and Fund 12 - General funds in fiscal year 2019-20 and will be a carryover into fiscal year 2020-21. The CC2020-04 Civic Center Park Hardscape Improvements cost breakdown is as follows:

Construction $ 138,590.00 Project Contingency, 12% $ 16,910.00 Geotechnical Testing & Survey $ 10,000.00 Landscaping, Trees and Incidentals $ 13,800.00 Project Budget: $ 179,300.00

The anticipated total budget expenditure for Civic Center Park is $420,000 which is within the funds approved by council at the May 12, 2020 meeting. RECOMMENDATION Staff recommends that City Council consider and approve the following:

1. Award the Construction Contract 2020-04 Civic Center Park Hardscape Improvements to FS Contractors, Inc. as the lowest responsive bid for the bid amount of $138,590.00.

2. Authorize a total project budget of $179,300.00 ($138,590.00 construction bid, geotechnical testing, survey, landscaping and 12% contingency).

Respectfully submitted, Brandon Slater Associate Engineer 08-20-03 bds

Item 4c Page 2


To: Honorable Mayor and Members of City Council

For the meeting of August 25, 2020


Initiated by: Shari Garwick, Director of Public Works

Subject: Maintenance Contract 2020-02 Traffic Signal/Street Light Maintenance

Contract – Rejection of All Bids

______________________________________________________________________________

BACKGROUND

The City’s existing Traffic Signal Maintenance Contract was originally approved in 1998 with

Computer Services Company (now Crosstown Electric & Data Inc.). The maintenance contract

allowed for multi-year renewals and totaled approximately $137,000 last year. These costs include

the routine maintenance of 36 traffic signals, 5 Rectangular Rapid Flash Beacons (RRFB’s), and

365 street lights. Additionally, the contract provides for reimbursement of extraordinary expenses

for emergency callouts. This reimbursement is done on a billing of time and material with labor

rates provided in the contract.

DISCUSSION/ANALYSIS

MC 2020-02 Traffic Signal/Street Light Maintenance Contract was publicly bid on July 14 2020.

The City received 3 bids which are:

SUMMARY

The Traffic Signal/Street Light Maintenance Contract MC No. 2020-02 was publicly bid on

July 14, 2020. Three bids were received. The apparent low bidder was Bear Electrical with

Crosstown Electric and Siemens Mobility also providing bids. In the process of reviewing the

bids, the City received a bid protest from the second low bidder, Crosstown Electric. As part

of the bid evaluation process, staff reviewed the structure of the bid documents and determined

that rebidding using the historic number of hours and material for extraordinary maintenance

would result in more representative annual cost for the contract. Rebidding would also allow

the incorporation of new traffic signals that will be installed by the Gold Line in the near future.

Staff recommends that Council reject all bids for MC 2020-02 Traffic Signal/Street Light

Maintenance Services.

Item 4d Page 1

Bear Electrical Solutions $203,818

Crosstown Electric & Data Inc. $266,063

Siemens Mobility Inc. $330,702

The bids included a breakdown of routine maintenance for the traffic signals, street lights and

RRFB’s and a breakdown of estimated emergency response time and material hours.

The estimated emergency response time and material quantities were based on a hypothetical

number of hours and did not reflect historic billings. The City received a bid protest from

Crosstown Electric regarding the hourly rate bid by Bear Electrical for these estimated emergency

response hours as well as a rebuttal letter from Bear Electrical. These letters are included in the

attachments.

Staff has since analyzed the historic billing hours for emergency services from last year. Rebidding

the contract using these historic numbers would result in a more representative estimated total cost

for the contract amount. As there is no real way to predict how much emergency services (traffic

signal outages, poles hit in a traffic accident, damage from power surges, etc) will be required in

a year, the contract is an estimate. However, using the historic hourly data should result in a more

precise approximation.

The amount budgeted for Traffic Signal Maintenance for FY 2020-2021 is $150,000. The

inclusion of the hypothetical emergency response time and material quantities puts the contract

over the amount budgeted. Using actual emergency response time and material hours, the contract

amount would be closer to actual costs and likely additional appropriation may not be necessary.

Rebidding the contract will also allow Staff to work to reduce the costs of the contract.

Therefore, Staff recommends that Council reject all bids. Staff will complete the analysis of

historical emergency response times for FY 2019-2020 and use those hours in the new contract.

The new contract will likely bid in October 2020. In the meantime, the City’s current Traffic

Signal Maintenance Contractor, Crosstown Electric, will continue to provide service.

RECOMMENDATION

Staff recommends Council reject all bids for MC 2020-02 Traffic Signal/Street Light Maintenance

Services.


Shari Garwick

Director of Public Works

Attachments: A Bid Protest Letter

B Rebuttal of Bid Protest

Item 4d Page 2

-

July 16, 2020 0 [§©[§DW@:,..,

JUl I 6 2020 �

City of San Dimas 245 E Bonita Ave. City of San Dimas, CA 91773

Re: Maintenance Contract 2020-02 Bid Protest

To Whom it May Concern,

-

CITY OF SAN DIMASCITY CLERK

Please consider this letter a formal bid protest for the City of San Dimas Maintenance Contract No. 2020-02 Traffic Signal/ Street light Maintenances Services Contract against any award to the apparent low bidder, Bear Electrical Solutions (Bear).

It is very clear that Bear manipulated the bid items in such a way as to make their overall bid appear lower by pricing bid items that were not likely to be used at an extremely low rate. These rates are not only unbalanced and predatory, they are far below cost and below the minimum rates set by the Department of Industrial Relations (DIR). Examples of this in Bear's bid:

Bid Hourly

Item Description of Base Bid Item Rate

lA Operations Superinrendanr(IMSATevel 111i- $ 50.00·

2A Engineering Technician (IMSA Level II) $ 40.00

3A Leadman (IMSA Level II) $ 40.00

7A Traffic Signalman Apprentice (IMSA Level 1) $ 45.00

8A Traffic Signal Laborer (IMSA Level 1) $ 45.00

The minimum wages that can be paid on this contract is set by the DIR. DIR directive 20-1 has the following categories that can be used for electrical work:

Bid Minimum Allowed

Item Craft Rate with Benefits

lA Transportation Systems Electrician $ 78.52

2A Transportation Systems Technicians $ 66.10

DIR directive SC-23-102-2-2019-2 contains the following category that can be used for Laborers. This is the lowest wage in the range of Laborers:

5454 Diaz Street Irwindale, CA 91706

Phone: 626-813-6693, Fax: 626-869-0192

Cl

Attachment A Page 1

Bid Minimum Allowed

Item Craft Rate with Benefits

3A Group 1 Laborer (Lowest Level) $ 57.78

In addition to the above wages and benefits, all employees must pay Workman's Compensation Insurance and the employee's portion of State and Federal taxes (an additional 9-13 dollars per hour)

Bear also manipulated the pricing of equipment that they knew would not be utilized on the project.

For example, the pricing for a Service Ladder Truck and a Saw Truck are $1.00 per hour and a Hydraulic Man Lift is $5.00 per hour. These prices are far below the actual hourly cost of these items.

By bidding in such an unbalanced manner, it is very clear that the City of San Dimas did not get a clear representation and comparison of the actual costs for this contract. For example, if the City were to analyze this the bid based on historical use of the labor and equipment classifications (Items 4A,5A,3B, and 7B) , it is very clear that the cost for Crosstown to service this contract is far lower than that of Bear.

By using unrealistically low rates on their proposal, Bear was able to lower their bid totals and give the illusion that they are the "Low Bidder" when in fact, they were not. For this reason, they should be disqualified, and the bid should be awarded to the next qualified bidder.

Thank you for your consideration in this matter.

]2 � David �. President Crosstown Electrical & Data, Inc.

5454 Diaz Street Irwindale, CA 91706

Phone: 626-813-6693, Fax: 626-869-0192

Attachment A Page 2

lrtJ5'S10lilll JJL'rl°A-- 1'£ldc4 I

City of San Dimas 245 East Bonita Avenue

San Dimas, CA 91773 Attn: City Clerk

/

BID PROTEST

Maintenance Contract 2020-02

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� JUL 1 6 2020 '-'

ClTY OF SAN DIMAS

CllYCLERK

Attachment A Page 3

1341 ARCHER STREET PO BOX 924 ALVISO, CA 95002

(408) 449-5178 MAIN

1(800)GOBEAR1 24-HOUR DISPATCH(408) 449-5147 FAX

WWW.BEAR-ELECTRICAL.COM

July 28, 2020

City of San Dimas 245 East Bonita Avenue San Dimas, CA 91773-3002 Sent Via EMAIL only: [email protected]

RE: Traffic Signal Maintenance Contract Bid No. 2020-02 – Bid Protest Letter Response

Dear Mr. Barragan,

Thank you for forwarding the protest letter from Crosstown Electrical & Data, Inc. (Crosstown) dated July 16, 2020. Based on our review of the letter, we believe there is no merit to Crosstown’s protest. It is our opinion that Crosstown’s protest letter is just a desperate attempt to deem our company non-responsive and irresponsible for their own benefit; when in fact we believe our bid is 100% responsive and responsible per the City of San Dimas bid specifications and per California Public Contract Code sections 10180. Their assertion that our bid gives the illusion that we are the low bidder is false and is based upon their own subjective assumptions about certain bid items.

There are two unfounded claims Crosstown is alleging in their protest letter:

1. Our bid is allegedly “manipulated” and “unbalanced;”2. Our rates for certain items are far below cost and below the minimum rates set by the DIR.

With regards to Crosstown’s claim that our bid is “manipulated,” “unbalanced and predatory” (particularly for bid items No. 1A-3A and 7A-8A) to make the bid appear lower is completely absurd and libel towards our company.

The term “unbalanced and predatory” is a misnomer and we believe the terms being used are libel towards our company. As you might already know, an unbalanced bid is one that (a) has unit prices based on nominal prices for some items of work and enhanced unit prices for other items of work, and (b) the amount and manner in which the unit prices are distributed is not reflective of the true cost to perform the work. In this bid and in the spirit of this contract, we believe the bid form is a way to define compensation rate schedules. Unlike a construction project, this bid is a service contract where quantities are indefinite and not all items are guaranteed. We only invoice what is truly used and based on performance as defined in the bid form. How can one unbalance an indeterminate project where not all items are guaranteed?

Moreover, a bid is deemed unbalanced if there is a reasonable doubt that award to the bidder submitting the alleged unbalanced bid will result in the lowest ultimate cost to the Agency. A subjective analysis based on assumptions of what bid items will or will not be used by Crosstown is hardly a justification that Bear will not result in the lowest ultimate cost to the Agency.

In respect to Crosstown’s second claim that our rates for certain items are far below cost and the minimum DIR rates is completely irrelevant. What Bear charges the City and what we pay our employees are two different things. We estimate our contract rates for specific bid items based upon a myriad of factors that are unique to our methods and our company. There is no law that states your hourly contract rates must be higher than your cost. Our company pays all our employees proper prevailing wages based on the proper classifications of the scope of work they are performing. We are registered with the DIR in the State of California and have never had one compliance issue in providing service contracts for over 60 agencies statewide as well as hundreds of public works construction projects.

Attachment B Page 1

CITY OF SAN DIMAS – PROTEST LETTER RESPONSE July 28, 2020 PAGE 2

I appreciate the opportunity to review Crosstown’s protest letter as well the overall bid tabulation for this project. As the bid tabulation shows, our pricing is in line with all the other bidders and Bear is truly the lowest responsive bidder. It makes no sense that Crosstown should be able to forecast what items may or may not be used to try and produce their own calculation of who the lowest bidder should be. We currently service over 65 public agencies statewide and strive to save them money and provide a cost-effective partnership on a daily basis. We look forward to delivering that same service and that same partnership approach with the City of San Dimas. Should you want to discuss this matter in person, feel free to contact me directly at my mobile number (408) 717-2448 or via email at [email protected]. Regards, Bear Electrical Solutions, Inc. Robert Asuncion Vice President

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To: Honorable Mayor and Members of City Council For the meeting of August 25, 2020


Initiated by: Fabiola Zelaya Melicher, Planning Manager

Subject: Summary of Senate Bill 1120. ________________________________________________________________________

BACKGROUND

On August 11, 2020, the City Council requested that Staff provide information regarding Senate Bill 1120.

Senate Bill 1120

Senate President Pro Tempore Toni Atkins introduced SB 1120 on February 19, 2020. SB 1120 affects single-family parcels in two ways that would potentially lead to up to four homes on lots where currently only one dwelling unit exists. First, the proposed legislation would allow existing single-family homes to be converted into duplexes. Second, SB 1120 would allow single-family parcels to be subdivided into two lots. This would allow each parcel to add an additional unit as well as an Accessory Dwelling Unit (ADU) per lot; thus, facilitating the construction of up to four units on a parcel previously developed with one single-family home.

This bill, among other things, contains provisions for an “urban lot split” that requires ministerial approval to subdivide an existing parcel to create two new parcels of equal size no smaller than 1,200 square feet (unless a local ordinance allows a smaller minimum lot size).

SUMMARY

Update of Senate Bill 1120 a housing/subdivision related bill introduced in the California Legislature this year.

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SB 1120 includes the following eligibility criteria for split lots/subdivision:

• The parcel or development must be located in a single-family residential zone. • The parcel cannot be located in a historic district or be a historic property itself (as

defined by the state or local county or city). • The parcel must be in a city whose boundaries include some portion of an urbanized

area or urban cluster as designated by the US Census Bureau. The Census Bureau defines an Urbanized Area as an area of 50,000 or more people; and an Urban Cluster of at least 2,500 and less than 50,000 people.

• If the parcel is located in an unincorporated area, then the parcel at stake must be a legal parcel wholly within the boundaries of an urbanized area/cluster.

• The parcel must be a minimum of 2,400 square feet in size. • The parcel must be divided into two parcels of equal size, which requires each

parcel created to be a minimum of 1,200 square feet in size. • The subdivision of a parcel cannot displace a household occupied by a moderate-,

low- or very-low income household or households or a rent-controlled unit. Displacement means the demolition or alteration of the existing dwelling unit.

• The parcel cannot have been created from a previous lot split. • The same person (or another party acting on their behalf) cannot request a lot split

on adjacent lots. Additionally, SB 1120 requires the following:

• Cities can require one off-street parking space per unit. It is not stated whether the single parking space must be within a garage. Most likely, cities will not be allowed to require a garage since it would be considered a barrier to the construction of additional dwelling units.

• Cities cannot require off-street parking if the parcel is located within one-half mile walking distance from a major transit stop or if there is a car share vehicle located within one block of the parcel (no definition provided related to this requirement in this bill).

• A city or county may impose objective zoning standards, objective subdivision standards, and objective design review standards applicable to a parcel created as long as these standards do not preclude the construction of two units on either parcel.

• A city may require a setback of up to four feet from the side and rear property lines. SB 1120 does not require that any of the units created be affordable. RECOMMENDATION Staff recommends that the City Council submit a Letter of Opposition for SB 1120.

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Fabiola Zelaya Melicher Planning Manager Attachments:

1. Draft Letter of Opposition 2. SB 1120 Text

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August 25, 2020 The Honorable Toni Atkins State President Pro Tempore State Capitol Office, Room 205 Sacramento, CA 95814 Re: SB 1120 (Atkins) – Oppose Dear Senate Pro Tem Atkins, On behalf of the City of San Dimas, I am writing to express the City’s opposition to SB 1120. This bill would require ministerial consideration without any discretionary review, hearing, or environmental review for proposed housing developments with two (2) residential units in zones where allowable uses are currently limited to single-family development. The law already allows residential parcels to construct an accessory dwelling unit by right on each residential parcel. SB 1120 would require cities to permit the development of a duplex or subdivision of a parcel into two (2) equal parcels, prohibit cities from imposing dedication of rights-of-way, limit parking requirements to no more than one space per unit, and prohibit any parking requirements for developments within ½ mile of a major transit stop or stop on a high frequency bus line or within one block of a car share vehicle. Additionally, SB 1120 imposes no requirement to build affordable units and continues a one-size-fits all approach to the housing crisis by eroding local control and the ability of residents to plan for and shape the future of their community. Lastly, SB 1120 will reduce the housing choices that are available within our communities. Local jurisdictions should be allowed to determine the appropriate mix of housing solutions and location that are right for their communities, which may include single-family housing. The City of San Dimas understands the State’s housing crisis and acknowledges the efforts to address this issue. However, efforts to increase housing production must take into consideration local needs and the City’s ability to plan and accommodate for higher

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density residential development that fits the fabric of our community. Also, development and population growth must be done in a manner that can be adequately served by the City’s resources and infrastructure. For these reasons, the City of San Dimas vehemently opposes SB 1120 as amended on August 12, 2020. Sincerely, Emmett Badar Mayor cc: The Honorable Anthony Portantino

State Senator, 25th District 1000 N. Central Avenue, Suite 240 Glendale, CA 91203 The Honorable Chris R. Holden Assembly Member, 41st District 600 N. Rosemead Blvd., Suite 117 Pasadena, CA 91107

League of California Cities, [email protected]

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AMENDED IN ASSEMBLY AUGUST 12, 2020

AMENDED IN ASSEMBLY JULY 27, 2020

AMENDED IN SENATE JUNE 18, 2020

AMENDED IN SENATE MAY 20, 2020

SENATE BILL No. 1120

Introduced by Senators Atkins, Caballero, Rubio, and Wiener (Principal coauthor: Senator McGuire)

(Coauthors: Senators Lena Gonzalez, Hill, and Roth)

February 19, 2020

An act to amend Section 66452.6 of, and to add Sections 65852.21 and 66411.7 to, the Government Code, relating to land use.

legislative counsel’s digest

SB 1120, as amended, Atkins. Subdivisions: tentative maps. The Planning and Zoning Law provides for the creation of accessory

dwelling units by local ordinance, or, if a local agency has not adopted an ordinance, by ministerial approval, in accordance with specified standards and conditions.

This bill, among other things, would require a proposed housing development containing 2 residential units within a single-family residential zone to be considered ministerially, without discretionary review or hearing, within a single-family residential zone, if the proposed housing development meets certain requirements, including, but not limited to, that the proposed housing development would not require demolition or alteration of housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income, that the proposed housing development does not allow for the demolition of

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more than 25% of the existing exterior structural walls, except as provided, and that the development is not located within a historic district, is not included on the State Historic Resources Inventory, or is not within a site that is legally designated or listed as a city or county landmark or historic property or district.

The bill would set forth what a local agency can and cannot require in approving the construction of 2 residential units, including, but not limited to, authorizing a city or county to impose objective zoning standards, objective subdivision standards, and objective design standards, as defined, unless those standards would have the effect of physically precluding the construction of up to 2 units, prohibiting the imposition of setback requirements under certain circumstances, and setting maximum setback requirements under all other circumstances.

The Subdivision Map Act vests the authority to regulate and control the design and improvement of subdivisions in the legislative body of a local agency and sets forth procedures governing the local agency’s processing, approval, conditional approval or disapproval, and filing of tentative, final, and parcel maps, and the modification of those maps. Under the Subdivision Map Act, an approved or conditionally approved tentative map expires 24 months after its approval or conditional approval or after any additional period of time as prescribed by local ordinance, not to exceed an additional 12 months, except as provided.

This bill, among other things, would require a city or county to ministerially approve a parcel map or tentative and final map for an urban lot split that meets certain requirements, including, but not limited to, that the urban lot split would not require the demolition or alteration of housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income, that the parcel is located within a residential zone, and that the parcel is not located within a historic district, is not included on the State Historic Resources Inventory, or is not within a site that is legally designated or listed as a city or county landmark or historic property or district.

The bill would set forth what a local agency can and cannot require in approving an urban lot split, including, but not limited to, authorizing a city or county to impose objective zoning standards, objective subdivision standards, and objective design standards, as defined, unless those standards would have the effect of physically precluding the construction of 2 units on either of the resulting parcels, prohibiting the

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imposition of setback requirements under certain circumstances, and setting maximum setback requirements under all other circumstances.

The bill would also extend the limit on the additional period that may be provided by ordinance, as described above, from 12 months to 24 months and would make other conforming or nonsubstantive changes.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment. CEQA does not apply to the approval of ministerial projects.

This bill, by establishing the ministerial review processes described above, would thereby exempt the approval of projects subject to those processes from CEQA.

By increasing the duties of local agencies with respect to land use regulations, the bill would impose a state-mandated local program.

The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes.

State-mandated local program: yes.

The people of the State of California do enact as follows:

line 1 SECTION 1. Section 65852.21 is added to the Government line 2 Code, to read: line 3 65852.21. (a) A proposed housing development containing line 4 two residential units within a single-family residential zone shall line 5 be considered ministerially, without discretionary review or a line 6 hearing, within a single-family residential zone, if the proposed line 7 housing development meets all of the following requirements: line 8 (1) The parcel subject to the proposed housing development is line 9 located within a city the boundaries of which include some portion

line 10 of either an urbanized area or urban cluster, as designated by the line 11 United States Census Bureau, or, for unincorporated areas, a legal

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line 1 parcel wholly within the boundaries of an urbanized area or urban line 2 cluster, as designated by the United States Census Bureau. line 3 (2) The parcel satisfies the requirements specified in line 4 subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision line 5 (a) of Section 65913.4. line 6 (3) Notwithstanding any provision of this section or any local line 7 law, the proposed housing development would not require line 8 demolition or alteration of any of the following types of housing: line 9 (A) Housing that is subject to a recorded covenant, ordinance,

line 10 or law that restricts rents to levels affordable to persons and line 11 families of moderate, low, or very low income. line 12 (B) Housing that is subject to any form of rent or price control line 13 through a public entity’s valid exercise of its police power. line 14 (C) A parcel on which an owner of residential real property has line 15 exercised the owner’s rights under Chapter 12.75 (commencing line 16 with Section 7060) of Division 7 of Title 1 to withdraw line 17 accommodations from rent or lease within 15 years before the date line 18 that the development proponent submits an application pursuant line 19 to Section 65913.4. line 20 (D) line 21 (C) Housing that has been occupied by a tenant in the last three line 22 years. line 23 (4) The parcel subject to the proposed housing development is line 24 not a parcel on which an owner of residential real property has line 25 exercised the owner’s rights under Chapter 12.75 (commencing line 26 with Section 7060) of Division 7 of Title 1 to withdraw line 27 accommodations from rent or lease within 15 years before the line 28 date that the development proponent submits an application. line 29 (4) line 30 (5) The proposed housing development does not allow the line 31 demolition of more than 25 percent of the existing exterior line 32 structural walls, unless the housing development meets at least line 33 one of the following conditions: line 34 (A) If a local ordinance so allows. line 35 (B) The site has not been occupied by a tenant in the last three line 36 years. line 37 (5) line 38 (6) The development is not located within a historic district or line 39 property included on the State Historic Resources Inventory, as line 40 defined in Section 5020.1 of the Public Resources Code, or within

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line 1 a site that is designated or listed as a city or county landmark or line 2 historic property or district pursuant to a city or county ordinance. line 3 (b) (1) Notwithstanding any local law and except as provided line 4 in paragraph (2), a city or county may impose objective zoning line 5 standards, objective subdivision standards, and objective design line 6 review standards that do not conflict with this section. line 7 (2) (A) The city or county shall not impose objective zoning line 8 standards, objective subdivision standards, and objective design line 9 standards that would have the effect of physically precluding the

line 10 construction of up to two units. line 11 (B) (i) Notwithstanding subparagraph (A), no setback shall be line 12 required for an existing structure or a structure constructed in the line 13 same location and to the same dimensions as an existing structure. line 14 (ii) Notwithstanding subparagraph (A), in all other circumstances line 15 not described in clause (i), a local government may require a line 16 setback of up to four feet from the side and rear lot lines. line 17 (c) In addition to any conditions established in accordance with line 18 subdivision (b), a local agency may require any of the following line 19 conditions when considering an application for two residential line 20 units as provided for in this section: line 21 (1) Off-street parking of up to one space per unit, except that a line 22 local agency shall not impose parking requirements in either of line 23 the following instances: line 24 (A) The parcel is located within one-half mile walking distance line 25 of either a high-quality transit corridor, as defined in subdivision line 26 (b) of Section 21155 of the Public Resources Code, or a major line 27 transit stop, as defined in Section 21064.3 of the Public Resources line 28 Code. line 29 (B) There is a car share vehicle located within one block of the line 30 parcel. line 31 (2) For residential units connected to an onsite wastewater line 32 treatment system, a percolation test completed within the last five line 33 years, or, if the percolation test has been recertified, within the last line 34 10 years. line 35 (d) A local agency shall require that a rental of any unit created line 36 pursuant to this section be for a term longer than 30 days. line 37 (e) Notwithstanding Section 65852.2, a local agency shall not line 38 be required to permit an accessory dwelling unit on parcels that line 39 use both the authority contained within this section and the line 40 authority contained in Section 66411.7.

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line 1 (f) Notwithstanding subparagraph (B) of paragraph (2) of line 2 subdivision (b), an application shall not be rejected solely because line 3 it proposes adjacent or connected structures provided that the line 4 structures meet building code safety standards and are sufficient line 5 to allow separate conveyance. line 6 (g) Local agencies shall include units constructed pursuant to line 7 this section in the annual housing element report as required by line 8 subparagraph (I) of paragraph (2) of subdivision (a) of Section line 9 65400.

line 10 (h) For purposes of this section, all of the following apply: line 11 (1) A housing development contains two residential units if the line 12 development proposes two new units or if it proposes to add one line 13 new unit to an existing unit. line 14 (2) The terms “objective zoning standards,” “objective line 15 subdivision standards,” and “objective design review standards” line 16 mean standards that involve no personal or subjective judgment line 17 by a public official and are uniformly verifiable by reference to line 18 an external and uniform benchmark or criterion available and line 19 knowable by both the development applicant or proponent and the line 20 public official prior to submittal. These standards may be embodied line 21 in alternative objective land use specifications adopted by a city line 22 or county, and may include, but are not limited to, housing overlay line 23 zones, specific plans, inclusionary zoning ordinances, and density line 24 bonus ordinances. line 25 (i) A local agency may adopt an ordinance to implement the line 26 provisions of this section. An ordinance adopted to implement this line 27 section shall not be considered a project under Division 13 line 28 (commencing with Section 21000) of the Public Resources Code. line 29 SEC. 2. Section 66411.7 is added to the Government Code, to line 30 read: line 31 66411.7. (a) Notwithstanding any other provision of this line 32 division and any local law, a city or county shall ministerially line 33 approve, as set forth in this section, a parcel map or tentative and line 34 final map for an urban lot split that meets all the following line 35 requirements: line 36 (1) The parcel map or tentative and final map subdivides an line 37 existing parcel to create two new parcels of equal size. line 38 (2) (A) Except as provided in subparagraph (B), both newly line 39 created parcels are no smaller than 1,200 square feet.

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line 1 (B) A local agency may by ordinance adopt a smaller minimum line 2 lot size subject to ministerial approval under this subdivision. line 3 (3) The parcel being subdivided meets all the following line 4 requirements: line 5 (A) The parcel is located within a residential zone. line 6 (B) The parcel subject to the proposed urban lot split is located line 7 within a city the boundaries of which include some portion of line 8 either an urbanized area or urban cluster, as designated by the line 9 United States Census Bureau, or, for unincorporated areas, a legal

line 10 parcel wholly within the boundaries of an urbanized area or urban line 11 cluster, as designated by the United States Census Bureau. line 12 (C) The parcel satisfies the requirements specified in line 13 subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision line 14 (a) of Section 65913.4. line 15 (D) The proposed urban lot split would not require demolition line 16 or alteration of any of the following types of housing: line 17 (i) Housing that is subject to a recorded covenant, ordinance, line 18 or law that restricts rents to levels affordable to persons and line 19 families of moderate, low, or very low income. line 20 (ii) Housing that is subject to any form of rent or price control line 21 through a public entity’s valid exercise of its police power. line 22 (iii) A parcel or parcels on which an owner of residential real line 23 property has exercised the owner’s rights under Chapter 12.75 line 24 (commencing with Section 7060) of Division 7 of Title 1 to line 25 withdraw accommodations from rent or lease within 15 years line 26 before the date that the development proponent submits an line 27 application pursuant to Section 65913.4. application. line 28 (iv) Housing that has been occupied by a tenant in the last three line 29 years. line 30 (E) The parcel is not located within a historic district or property line 31 included on the State Historic Resources Inventory, as defined in line 32 Section 5020.1 of the Public Resources Code, or within a site that line 33 is designated or listed as a city or county landmark or historic line 34 property or district pursuant to a city or county ordinance. line 35 (F) The parcel has not been established through prior exercise line 36 of an urban lot split as provided for in this section. line 37 (G) Neither the owner of the parcel being subdivided nor any line 38 person acting in concert with the owner has previously subdivided line 39 an adjacent parcel using an urban lot split as provided for in this line 40 section.

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line 1 (b) An application for an urban lot split shall be approved in line 2 accordance with the following requirements: line 3 (1) A local agency shall approve or deny an application for an line 4 urban lot split ministerially without discretionary review. line 5 (2) A local agency shall approve an urban lot split only if it line 6 conforms to all applicable objective requirements of the line 7 Subdivision Map Act (Division 2 (commencing with Section line 8 66410)), except as otherwise expressly provided in this section. line 9 (3) Notwithstanding Section 66411.1, a local agency shall not

line 10 impose regulations that require dedications of rights-of-way or the line 11 construction of offsite improvements for the parcels being created line 12 as a condition of issuing a parcel map or tentative and final map line 13 for an urban lot split. line 14 (c) (1) Except as provided in paragraph (2), notwithstanding line 15 any local law, a city or county may impose objective zoning line 16 standards, objective subdivision standards, and objective design line 17 review standards applicable to a parcel created by an urban lot line 18 split that do not conflict with this section. line 19 (2) A local agency shall not impose objective zoning standards, line 20 objective subdivision standards, and objective design review line 21 standards that would have the effect of physically precluding the line 22 construction of two units on either of the resulting parcels. line 23 (3) (A) Notwithstanding paragraph (2), no setback shall be line 24 required for an existing structure or a structure constructed in the line 25 same location and to the same dimensions as an existing structure. line 26 (B) Notwithstanding paragraph (2), in all other circumstances line 27 not described in subparagraph (A), a local government may require line 28 a setback of up to four feet from the side and rear lot lines. line 29 (d) In addition to any conditions established in accordance with line 30 subdivision (c), a local agency may require any of the following line 31 conditions when considering an application for an urban lot split: line 32 (1) Easements required for the provision of public services and line 33 facilities. line 34 (2) A requirement that the parcels have access to, provide access line 35 to, or adjoin the public right-of-way. line 36 (3) Off-street parking of up to one space per unit, except that a line 37 local agency shall not impose parking requirements in either of line 38 the following instances: line 39 (A) The parcel is located within one-half mile walking distance line 40 of either a high-quality transit corridor as defined in subdivision

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line 1 (b) of Section 21155 of the Public Resources Code, or a major line 2 transit stop as defined in Section 21064.3 of the Public Resources line 3 Code. line 4 (B) There is a car share vehicle located within one block of the line 5 parcel. line 6 (e) A local agency shall require that the uses allowed on a lot line 7 created by this section be limited to residential uses. line 8 (f) A local agency shall require that a rental of any unit created line 9 pursuant to this section be for a term longer than 30 days.

line 10 (g) A local agency shall not require, as a condition for ministerial line 11 approval of a permit application for the creation of an urban lot line 12 split, the correction of nonconforming zoning conditions. line 13 (h) Notwithstanding Section 65852.2, a local agency shall not line 14 be required to permit an accessory dwelling unit on parcels that line 15 use both the authority contained within this section and the line 16 authority contained in Section 65852.21. line 17 (i) Notwithstanding paragraph (3) of subdivision (c), an line 18 application shall not be rejected solely because it proposes adjacent line 19 or connected structures provided that the structures meet building line 20 code safety standards and are sufficient to allow separate line 21 conveyance. line 22 (j) Local agencies shall include the number of applications for line 23 urban lot splits pursuant to this section in the annual housing line 24 element report as required by subparagraph (I) of paragraph (2) line 25 of subdivision (a) of Section 65400. line 26 (k) For purposes of this section, the terms “objective zoning line 27 standards,” “objective subdivision standards,” and “objective line 28 design review standards” mean standards that involve no personal line 29 or subjective judgment by a public official and are uniformly line 30 verifiable by reference to an external and uniform benchmark or line 31 criterion available and knowable by both the development applicant line 32 or proponent and the public official prior to submittal. These line 33 standards may be embodied in alternative objective land use line 34 specifications adopted by a city or county, and may include, but line 35 are not limited to, housing overlay zones, specific plans, line 36 inclusionary zoning ordinances, and density bonus ordinances. line 37 (l) A local agency may adopt an ordinance to implement the line 38 provisions of this section. An ordinance adopted to implement this line 39 section shall not be considered a project under Division 13 line 40 (commencing with Section 21000) of the Public Resources Code.

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line 1 SEC. 3. Section 66452.6 of the Government Code is amended line 2 to read: line 3 66452.6. (a) (1) An approved or conditionally approved line 4 tentative map shall expire 24 months after its approval or line 5 conditional approval, or after any additional period of time as may line 6 be prescribed by local ordinance, not to exceed an additional 24 line 7 months. However, if the subdivider is required to expend two line 8 hundred thirty-six thousand seven hundred ninety dollars line 9 ($236,790) or more to construct, improve, or finance the

line 10 construction or improvement of public improvements outside the line 11 property boundaries of the tentative map, excluding improvements line 12 of public rights-of-way which abut the boundary of the property line 13 to be subdivided and which are reasonably related to the line 14 development of that property, each filing of a final map authorized line 15 by Section 66456.1 shall extend the expiration of the approved or line 16 conditionally approved tentative map by 48 months from the date line 17 of its expiration, as provided in this section, or the date of the line 18 previously filed final map, whichever is later. The extensions shall line 19 not extend the tentative map more than 10 years from its approval line 20 or conditional approval. However, a tentative map on property line 21 subject to a development agreement authorized by Article 2.5 line 22 (commencing with Section 65864) of Chapter 4 of Division 1 may line 23 be extended for the period of time provided for in the agreement, line 24 but not beyond the duration of the agreement. The number of line 25 phased final maps that may be filed shall be determined by the line 26 advisory agency at the time of the approval or conditional approval line 27 of the tentative map. line 28 (2) Commencing January 1, 2012, and each calendar year line 29 thereafter, the amount of two hundred thirty-six thousand seven line 30 hundred ninety dollars ($236,790) shall be annually increased by line 31 operation of law according to the adjustment for inflation set forth line 32 in the statewide cost index for class B construction, as determined line 33 by the State Allocation Board at its January meeting. The effective line 34 date of each annual adjustment shall be March 1. The adjusted line 35 amount shall apply to tentative and vesting tentative maps whose line 36 applications were received after the effective date of the line 37 adjustment. line 38 (3) “Public improvements,” as used in this subdivision, include line 39 traffic controls, streets, roads, highways, freeways, bridges,

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line 1 overcrossings, street interchanges, flood control or storm drain line 2 facilities, sewer facilities, water facilities, and lighting facilities. line 3 (b) (1) The period of time specified in subdivision (a), including line 4 any extension thereof granted pursuant to subdivision (e), shall line 5 not include any period of time during which a development line 6 moratorium, imposed after approval of the tentative map, is in line 7 existence. However, the length of the moratorium shall not exceed line 8 five years. line 9 (2) The length of time specified in paragraph (1) shall be

line 10 extended for up to three years, but in no event beyond January 1, line 11 1992, during the pendency of any lawsuit in which the subdivider line 12 asserts, and the local agency which approved or conditionally line 13 approved the tentative map denies, the existence or application of line 14 a development moratorium to the tentative map. line 15 (3) Once a development moratorium is terminated, the map line 16 shall be valid for the same period of time as was left to run on the line 17 map at the time that the moratorium was imposed. However, if the line 18 remaining time is less than 120 days, the map shall be valid for line 19 120 days following the termination of the moratorium. line 20 (c) The period of time specified in subdivision (a), including line 21 any extension thereof granted pursuant to subdivision (e), shall line 22 not include the period of time during which a lawsuit involving line 23 the approval or conditional approval of the tentative map is or was line 24 pending in a court of competent jurisdiction, if the stay of the time line 25 period is approved by the local agency pursuant to this section. line 26 After service of the initial petition or complaint in the lawsuit upon line 27 the local agency, the subdivider may apply to the local agency for line 28 a stay pursuant to the local agency’s adopted procedures. Within line 29 40 days after receiving the application, the local agency shall either line 30 stay the time period for up to five years or deny the requested stay. line 31 The local agency may, by ordinance, establish procedures for line 32 reviewing the requests, including, but not limited to, notice and line 33 hearing requirements, appeal procedures, and other administrative line 34 requirements. line 35 (d) The expiration of the approved or conditionally approved line 36 tentative map shall terminate all proceedings and no final map or line 37 parcel map of all or any portion of the real property included within line 38 the tentative map shall be filed with the legislative body without line 39 first processing a new tentative map. Once a timely filing is made, line 40 subsequent actions of the local agency, including, but not limited

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line 1 to, processing, approving, and recording, may lawfully occur after line 2 the date of expiration of the tentative map. Delivery to the county line 3 surveyor or city engineer shall be deemed a timely filing for line 4 purposes of this section. line 5 (e) Upon application of the subdivider filed before the expiration line 6 of the approved or conditionally approved tentative map, the time line 7 at which the map expires pursuant to subdivision (a) may be line 8 extended by the legislative body or by an advisory agency line 9 authorized to approve or conditionally approve tentative maps for

line 10 a period or periods not exceeding a total of six years. The period line 11 of extension specified in this subdivision shall be in addition to line 12 the period of time provided by subdivision (a). Before the line 13 expiration of an approved or conditionally approved tentative map, line 14 upon an application by the subdivider to extend that map, the map line 15 shall automatically be extended for 60 days or until the application line 16 for the extension is approved, conditionally approved, or denied, line 17 whichever occurs first. If the advisory agency denies a subdivider’s line 18 application for an extension, the subdivider may appeal to the line 19 legislative body within 15 days after the advisory agency has line 20 denied the extension. line 21 (f) For purposes of this section, a development moratorium line 22 includes a water or sewer moratorium, or a water and sewer line 23 moratorium, as well as other actions of public agencies which line 24 regulate land use, development, or the provision of services to the line 25 land, including the public agency with the authority to approve or line 26 conditionally approve the tentative map, which thereafter prevents, line 27 prohibits, or delays the approval of a final or parcel map. A line 28 development moratorium shall also be deemed to exist for purposes line 29 of this section for any period of time during which a condition line 30 imposed by the city or county could not be satisfied because of line 31 either of the following: line 32 (1) The condition was one that, by its nature, necessitated action line 33 by the city or county, and the city or county either did not take the line 34 necessary action or by its own action or inaction was prevented or line 35 delayed in taking the necessary action before expiration of the line 36 tentative map. line 37 (2) The condition necessitates acquisition of real property or line 38 any interest in real property from a public agency, other than the line 39 city or county that approved or conditionally approved the tentative line 40 map, and that other public agency fails or refuses to convey the

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line 1 property interest necessary to satisfy the condition. However, line 2 nothing in this subdivision shall be construed to require any public line 3 agency to convey any interest in real property owned by it. A line 4 development moratorium specified in this paragraph shall be line 5 deemed to have been imposed either on the date of approval or line 6 conditional approval of the tentative map, if evidence was included line 7 in the public record that the public agency which owns or controls line 8 the real property or any interest therein may refuse to convey that line 9 property or interest, or on the date that the public agency which

line 10 owns or controls the real property or any interest therein receives line 11 an offer by the subdivider to purchase that property or interest for line 12 fair market value, whichever is later. A development moratorium line 13 specified in this paragraph shall extend the tentative map up to the line 14 maximum period as set forth in subdivision (b), but not later than line 15 January 1, 1992, so long as the public agency which owns or line 16 controls the real property or any interest therein fails or refuses to line 17 convey the necessary property interest, regardless of the reason line 18 for the failure or refusal, except that the development moratorium line 19 shall be deemed to terminate 60 days after the public agency has line 20 officially made, and communicated to the subdivider, a written line 21 offer or commitment binding on the agency to convey the necessary line 22 property interest for a fair market value, paid in a reasonable time line 23 and manner. line 24 SEC. 4. The Legislature finds and declares that ensuring access line 25 to affordable housing is a matter of statewide concern and not a line 26 municipal affair as that term is used in Section 5 of Article XI of line 27 the California Constitution. Therefore, Sections 1 and 2 of this act line 28 adding Sections 65852.21 and 66411.7 to the Government Code line 29 and Section 3 of this act amending Section 66452.6 of the line 30 Government Code apply to all cities, including charter cities. line 31 SEC. 5. No reimbursement is required by this act pursuant to line 32 Section 6 of Article XIIIB of the California Constitution because line 33 a local agency or school district has the authority to levy service line 34 charges, fees, or assessments sufficient to pay for the program or line 35 level of service mandated by this act, within the meaning of Section line 36 17556 of the Government Code.

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SB 1120 — 13 —

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To: Honorable Mayor and Members of City Council, as Successor Agency to the Former San Dimas Redevelopment Agency For the meeting of August 25, 2020

From: Brad McKinney, Interim Executive Director

Subject: CONSIDERATION OF AN EXCLUSIVE NEGOTIATING AGREEMENT (ENA) WITH PIONEER SQUARE, LLC FOR THE DEVELOPMENT OF A MIXED-USE PROJECT AT PROPERTIES LOCATED AT 344 WEST BONITA AVENUE (APN: 8386-021-913), 108 NORTH CATARACT AVENUE (APN: 8390-021-916), AND 112 NORTH CATARACT (APN: 8390-021-915), SAN DIMAS CALIFORNIA

______________________________________________________________________

BACKGROUND

In June 2019, the San Dimas Successor Agency ("Agency"), with the assistance of Kosmont Real Estate Services ("KR"), issued an initial offering for the sale of a +/- 3.57-acre property at 344 West Bonita Avenue, San Dimas, between Cataract and Acacia Avenues. This Property is within proximity to the City's downtown and is adjacent to Pioneer Park. The Property is also within a half-mile of the proposed San Dimas rail station, which will be part of the Foothill Gold Line Rail project.

The Agency received three developer proposals and/or letters of interest for the acquisition and/or development of the Property. The Agency staff and KR completed a detailed evaluation of the proposals/letters of interest submitted and separately conducted interviews as part of the evaluation process. Pioneer Square, LLC. ("Developer") was ultimately selected to advance to the next phase of the evaluation process due to their comprehensive conceptual plan that proposed an attractive, livable community by combining hospitality, residential and commercial uses with public plaza

SUMMARY The Successor Agency to the Former San Dimas Redevelopment Agency owns 344 West

Bonita Avenue (APN: 8386-021-913), 108 North Cataract Avenue (APN: 8390-021-916) and 112 North Cataract Avenue (APN: 8390-021-915) (“Property”), which are underutilized and

underperforming properties. The Agency seeks to enter into an Exclusive Negotiating Agreement (ENA) with Pioneer Square, LLC to buy and develop these sites with residential, commercial, retail/restaurant and hotel uses that seek to enhance economic and employment

opportunities for the City and the surrounding areas.

Item 5 Page 1

amenities and subterranean parking to provide a sense of place and engagement not only for the local community but for the region as well. PROJECT & ENA ANALYSIS This Exclusive Negotiating Agreement ("ENA") is an agreement between the Successor Agency/City and the Developer specifying a range of time whereby the parties shall exclusively negotiate in good faith to arrive at a final Project Plan and Conveyance Instrument. The ENA period legally binds the Agency to not negotiate with 3rd parties regarding the Property, and it requires the Developer to conduct its Property due diligence work and complete a series of reports, studies, and plans regarding the Project's scope and feasibility. During the ENA, the parties will evaluate the Developer's Project Plan and financial feasibility for designing and building a mixed-use project that is proposed to include approximately:

• 40 for-sale housing units (townhomes and flats); • 28,000 square feet of retail and commercial space, including a possible bookstore, dining

(provided dining shall not include any fast food, except as expressly approved by the City), small grocer, creative office space, health & exercise use and 15,000 square feet of office/flex space;

• Boutique hotel with approximately 60-80 rooms with lobby, restaurant and bar services, pool, and roof-top bar;

• 200 subterranean and semi-subterranean parking spaces; and • Design amenities that will accentuate the pedestrian experience, interrelate the relationship

between Pioneer Square and Pioneer Park, and install long-term sustainable drought-resistant landscape improvements.

The ENA will enable the Agency/City to identify and assess the potential public benefits and new city revenues (property taxes, transient occupancy taxes, and sales taxes), as well as potential private benefits (construction and permanent jobs with badly needed housing opportunities) for the City and region. The initial ENA term is for 120 calendar days and may be extended for two additional 90-day periods at the Developer's request and with the written approval of the City Manager/Executive Director. The Developer will have 90-days from the ENA effective date to complete its due diligence site work. The Developer will prepare studies, reports, and analysis to determine the feasibility of the Project. The Developer shall submit to the Agency/City a boutique hotel study, site plan and development program, preliminary proforma, public outreach plan, monthly leasing activity report, preliminary financing plan, partners disclosure report, development schedule, and other documentation requested by the Agency/City. The Developer will secure a Phase I environmental report, and if necessary, perform a Phase II report after obtaining a right of entry agreement from the City. The ENA calls for the Developer to acquire the Property in fee interest for Three Million Dollars ($3,000,000) subject to confirmation of this price by a fair market value appraisal by an appraiser

Item 5 Page 2

selected by the Agency/City. The appraisal may account for any specific property constraints, which may include public improvements and environmental conditions. Potential storm drain relocation work and soils mitigation issues will be considered and may generate pricing adjustments as part of the appraisal evaluation. The land purchase price or adjustments made by the appraisal of the Property's market value will be subject to the approval of the Los Angeles Fifth District Consolidated Countywide Oversight Board ("OB"). The Developer will be responsible for financing and building all on-site improvements required of the Project. The Developer will pay for other necessary public improvements, including all City fees incurred for processing this Project. As currently conceived, it is anticipated that there shall be no Agency/City financial assistance provided to this Project unless specifically provided in the ENA. The Developer will deposit $25,000 within five days of the ENA effective date to reimburse the Agency/City for third-party costs and expenses. Staff-related time and internal costs are also eligible for reimbursement. The Agency/City will provide the Developer with a written monthly report accounting for these expenses. The Developer shall deposit another $25,000 within five days of the OB's approval of the Conveyance Instrument, so long as there are no third-party challenges or litigation. These funds shall be nonrefundable and applicable to the land purchase price, except in the case of an Agency/City default, an OB or other oversight board non-approval, or an Agency/City failure to approve or execute the Conveyance Instrument. If this occurs, the remaining deposit will be returned to the Developer. Within five days of approval of a Conveyance Instrument, the Developer will deposit $50,000 to reimburse the Agency/City for its third-party costs to complete CEQA documents, reports, and studies. There is no provision in the ENA to commit the Developer to buy the Property or develop the Project. Moreover, the ENA does not require the Agency/City to sell the Property or approve the Project. The ENA provides the Agency/City with unfettered discretion to reject the Project and/or the Conveyance Instrument. During the ENA, the Developer cannot assign its rights and obligations under the ENA without the City’s consent, except to Permitted Affiliates. Once the Conveyance Instrument is executed, the City has approved the Project, and the City has issued a Certificate of Occupancy for the Project, the Developer may convey the Property and Project without the City’s consent. RECOMMENDATION Staff recommends that the City Council take the following actions:

1. Approve the Exclusive Negotiating Agreement (ENA) between the Successor Agency to the Former San Dimas Redevelopment Agency and Pioneer Square, LLC; and

Item 5 Page 3

2. Authorize the Executive Director to execute the ENA, in a form acceptable to the City Attorney, on behalf of the Successor Agency.


Brad McKinney, Interim Executive Director Attachment: Exclusive Negotiation Agreement

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01171.0021/648069.11 FG

EXCLUSIVE NEGOTIATION AGREEMENT

THIS EXCLUSIVE NEGOTIATION AGREEMENT ("ENA" or "Agreement") is made this ____ day of August, 2020 ("Effective Date"), by and between the Successor Agency to the Former San Dimas Redevelopment Agency, a political subdivision formed pursuant to Health and Safety Code 34173 ("Agency" or “City”), and Pioneer Square, LLC, a California limited liability company ("Developer"). Agency and Developer are hereinafter collectively referred to as the "parties" and individually as a "party".

RECITALS

The parties enter into this Agreement on the basis of the following facts, understandings, and intentions:

A. The Site; Underutilization Thereof: Agency owns the following properties located at 344 West Bonita Avenue (APN: 8386-021-913), 108 North Cataract Avenue (APN: 8390-021-916), and 112 North Cataract Avenue (APN: 8390-021-915), which is within the City of San Dimas’s municipal boundaries and more particularly shown and described in Exhibit "A" attached hereto (the "Site"). The Site is currently underutilized, falling substantially short of its revenue-generating and job-generating potential. The Agency therefore seeks to enter into exclusive negotiations with the Developer with the purpose of reaching an agreement for the acquisition and development of the Site to enhance the Site's residential, commercial, retail/restaurant, and hotel uses, thereby providing further economic and employment opportunities on and around the Site, while maintaining high standards of development and environmental protection. Agency/City seeks to utilize the Site in a manner that will maximize public benefits and welfare, while encouraging the development of a well-planned and thoughtfully designed mixed-use development.

B. Site is Located for Transit-Oriented Residential, Mixed-Use Retail Center. The Site fronts Bonita Avenue and is within close proximity to the City’s downtown and highest concentration of commercial activity as well as adjacent to Pioneer Park. The Site is located within a half mile from the proposed San Dimas station as part of the Foothill Gold Line light rail project from Glendora to Montclair, which is located east of San Dimas Avenue between Bonita Avenue and Arrow Highway. The Site also has easy regional access to major freeways including U.S. Highway 57. The Project, as currently proposed, could provide substantial economic growth in the City of San Dimas to the extent the Project (as that term is defined below):

• Provides for a land use and infrastructure plan that will support the creation of a major job center in the City;

• Helps to establish San Dimas as a prime location for boutique hotel, residential, retail and restaurant uses, as such uses are further defined in Exhibit “B”;

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• Provides a balanced approach to City's fiscal viability, revenue generation (e.g. property tax, transient occupancy tax, and sales tax), economic expansion and environmental integrity;

• Improves City's jobs to housing balance; and

• Provides new, local construction jobs as well as permanent employment opportunities.

C. Proposed Project: In order to achieve the above-described goals of enhancing the Site's use, Agency and Developer are considering a conceptual plan to design and construct a mixed use project (with boutique hotel, restaurant, retail, and residential uses) upon the Site (collectively, the "Project"). It is anticipated that the Project will consist of a concept plan and preliminary development program (to be further refined as part of the related land use entitlement process), of approximately 40 for-sale residential dwelling units (townhomes and flats), a boutique hotel (with approximately 60-80 keys), approximately 28,000 square feet of retail/restaurants/boutique market and approximately 15,000 square feet of flex-space/create office uses. The Project concept plan is described further in Exhibit "B" ("Required Project Features/Elements") and Exhibit “E” (“Preliminary Site Plan”).

It is anticipated that the Project will generate revenue and provide both construction-related and permanent employment opportunities for the San Dimas community. It is also anticipated that as part of the Project's land use entitlement process, the Project will be required to: reflect a high quality of development; strictly adhere to applicable building codes and other applicable standards and requirements; implement appropriate measures, as feasible, to address any identified significant environmental impacts; and incorporate feasible energy efficiency, water conservation, and other sustainability measures (to enhance the Project's efficiency and help reduce greenhouse gas emissions, among other things). In addition, it is anticipated that the Project will be designed to include necessary street and utility infrastructure to serve the Project, to be further considered as part of its entitlement process.

D. Further Plans Needed for Project Proposal; Compliance with Laws: Developer previously submitted an LOI/Proposal, as part of the related solicitation for LOI/Proposals conducted by the Agency in June 2019, which provided a very general outline of the Project's potential components (see Exhibit "B"). Assuming the parties enter into a Conveyance Instrument (as that term is defined below), it is anticipated that Developer will submit more detailed concept plans, site plans and Project descriptions as necessary and desirable for City to process the required land use entitlements, approvals, and permits (both ministerial and discretionary) to develop the Project, subject to full compliance with the California Environmental Quality Act (Public Resources Code § 21000 et seq., (“CEQA”) (collectively, “Project Entitlements”). Any such specific Project land use application(s) will be submitted in a manner that is consistent with all applicable laws, ordinances, regulations, and requirements of the City of San Dimas, including but not limited to, the City's Zoning Code and General Plan (subject to any amendments thereto approved by City as part of the entitlement process). This Agreement is only an agreement to negotiate the terms of the Conveyance Instrument; accordingly, it does not guaranty that City will issue any Project Entitlements or in any way limit City's discretion in approving or disapproving the Project or any portion thereof, or require Developer to entitle, construct or operate the Project.

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E. Project Contingent on Resolution of Multiple Issues. Assuming the parties enter into a Conveyance Instrument and Developer pursues the Project, the parties acknowledge that completion of this Project may entail approvals from, and cooperation with, different governmental agencies, and potential resolution of environmental review issues.

F. Identity of Developer: The term "Developer," as used herein, refers to Pioneer Square LLC, a California limited liability company and its existing and any future affiliates.

G. Negotiations with Goal of Reaching Agreement on a Conveyance Instrument: Agency and Developer desire, for the Period of Negotiation (as that term is defined in Section 2 below), to continue negotiating diligently and in good faith with the goal of entering into one or more of a purchase and sale agreement, development agreement, a disposition and development agreement, or other agreement(s) effecting the conveyance of ownership and/or occupancy rights for the Site to Developer, and otherwise setting forth the terms and conditions of a mutually acceptable arrangement that provides for the development of the Project as contemplated therein along with the parties' other rights and obligations related thereto (each and collectively, a "Conveyance Instrument"). The parties understand and acknowledge that the Conveyance Instrument will expressly condition the close of the escrow to occur only after final City approval of the Project Entitlements. City approval of all Project Entitlements and the expiration of all applicable appeal or challenge periods to such approvals, without the filing of any such appeal or challenge by a third party, shall be a condition precedent to the closing of the transaction under the Conveyance Instrument, which condition precedent is for the benefit of each of Developer and City.

NOW, THEREFORE, and in consideration of the mutual covenants contained herein, the parties mutually agree to the following:

SECTION 1. NATURE OF NEGOTIATIONS.

A. Good Faith. Agency and Developer agree that, for the Period of Negotiation, they shall negotiate diligently and in good faith to prepare and enter into a Conveyance Instrument, which will require Developer to secure approval from City of the Project Entitlements as a condition to closing of escrow on the Site. Assuming the parties enter into said Conveyance Instrument and Developer pursues the Project, the parties acknowledge that the Project's development will be subject to City’s approval of the Project Entitlements in accordance with all applicable rules, regulations, standards, and criteria set forth in the City's General Plan and other applicable specific plan(s) and zoning regulations (which may necessitate amendment or other modification to accommodate Developer's proposed uses). Agency agrees, for the Period of Negotiation, not to negotiate with any other person or entity regarding the leasing, conveyance, redevelopment or development of the Site or any portion thereof without the prior written consent of Developer, which Developer may withhold in its sole and absolute discretion. The City/Agency may be able to receive unsolicited offers, but the City shall not negotiate with these proposers during the ENA period. The City/Agency may, however, respond to public inquiries regarding the progress or implementation of the Project. The City shall provide any customary project information to the public that is required by law to be disclosed.

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B. No Commitment on Conveyance of Site or Project Approval. Nothing in this Agreement shall be deemed a covenant, promise or commitment by Developer to acquire the Site or develop the Project; or by the Agency, City of San Dimas, or any subdivision of the City, with respect to the conveyance of the Site or the approval of any development of the Site or otherwise. The parties' execution of this Agreement is merely an agreement to enter into a period of exclusive negotiations according to the terms hereof, reserving final discretion and approval by City as to any actions required of it under applicable laws and regulations. Recital Paragraphs "A" through "G," inclusive are incorporated by reference as substantive provisions of this Agreement.

C. Developer Deposit for Agency Expenses/CEQA Expenses. Developer acknowledges that Agency will expend substantial resources in the negotiation and performance of this Agreement. Within five (5) days of the Effective Date of this Agreement, Developer shall submit to Agency a deposit (the "Agency Expenses Deposit") in the amount of Twenty Five Thousand Dollars ($25,000), which shall be used to reimburse Agency all of its reasonable expenses as described herein.

The purpose of the Agency Expenses Deposit is: to pay for Agency's/City’s actual and reasonable third-party costs and expenses in connection with the negotiation and performance of this Agreement, including, but not be limited to, the preparation of the Conveyance Instrument. Such third-party costs shall include, but not be limited to, fees and expenses of legal counsel, financial and economic consultants and reports, in each case engaged by Agency/City for services relating to the negotiation and performance of this Agreement.

For purposes of this Agreement, Agency/City may also reimburse itself for internal staff-related time and internal costs ("internal costs" are costs relating to legal counsel and technical experts) associated with the negotiation and performance of this Agreement, consistent with applicable standard City rates. Agency/City shall provide Developer with a written report and accounting of expenditures from the Agency Expenses Deposit on a monthly basis and also upon the expiration or termination of this Agreement, which reasonably documents said time, costs and expenses. Should the Agency Expenses Deposit be insufficient to pay the aforementioned Agency costs and expenses, Developer shall supplement the Agency Expenses Deposit by the amount reasonably required by Agency to pay such costs and expenses, subject to Developer approval. Should Developer not pay any deposits required by this Section, then Agency/City may temporarily halt further negotiation and performance of this Agreement, including, but not be limited to, the preparation of the Conveyance Instrument pending resolution of the amount of any additional Agency Expenses Deposit; upon such resolution, Agency/City shall immediately re-commence negotiation and performance of this Agreement, including, but not be limited to, the preparation of the Conveyance Instrument.

Assuming the parties successfully negotiate a Conveyance Instrument, the Agency Expenses Deposit will be increased by an initial deposit of Fifty Thousand Dollars ($50,000) paid by Developer within five (5) days of the effective date of the Conveyance Instrument (the “CEQA Expenses Deposit”), which shall be used solely to reimburse Agency/City for all third-party consultant costs incurred by City to complete all documents, reports and studies for its CEQA review of the Project (collectively, the “CEQA Expenses”).

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Such CEQA Expenses Deposit may be increased as necessary to pay for the actual costs incurred and charged by the CEQA Consultant to Agency/City, upon thirty (30) days’ prior written notice to and approval of Developer of said anticipated increase and reasonable documentation thereof. To this end, City/Agency shall provide Developer with a written report and accounting of expenditures from the Agency Expenses Deposit on a monthly basis and also upon the expiration or termination of this Agreement, which reasonably documents said time, costs and expenses.

At any time the balance of the Agency Expenses Deposit is less than Five Thousand Dollars ($5,000), Agency/City may request that Developer deposit additional funds with Agency/City as is necessary to pay for the CEQA Expenses, in which case Developer shall make such additional deposit(s) no later than thirty (30) days of its receipt of any such written request in order to replenish the CEQA Expenses Deposit in a sufficient amount to meet any such additional reasonably anticipated costs. Should Developer not pay any deposits required by this Section, then Agency/City may temporarily halt further processing of the Project Entitlements pending resolution of the amount of any additional CEQA Expenses required to complete the CEQA analysis of the Project; upon such resolution, Agency/City shall immediately re-commence processing of the Project Entitlements and complete the Project’s CEQA analysis. The CEQA Expenses Deposit shall be separate from the deposits made by Developer under Section 6 below and not applicable to any portion of the Purchase Price.

To the extent Agency/City has a remaining balance in the Agency Expenses Deposit by the end of the term of this Agreement, and Developer is not in breach of this Agreement (after any applicable notice and cure period has elapsed), Agency/City shall return that portion of the Agency Expenses Deposit for which Agency/City has not incurred costs along with an accounting of the costs incurred by Agency/City through the end of the term of this Agreement. Provided, however, that if performance of this Agreement results in the execution of a Conveyance Instrument, any provisions relating to further reimbursement of Agency/City expenses in connection with the Conveyance Instrument and/or the Project's entitlement process shall be as provided for in the Conveyance Instrument.

If this Agreement is terminated by Agency/City at any time due to a material breach of Developer's obligations hereunder, then the entire balance of the Agency Expenses Deposit shall be retained by Agency/City, as set forth in Section 8(G) below.

D. Site. The proposed Project (as proposed by Developer and approved by Agency/City) shall be located upon all or a portion of the Site. Agency/City makes no representation concerning the developability of the Site, and Developer shall exercise due diligence and, at its own expense and in its discretion, make all necessary Site investigations to assure itself of the suitability of the Site for development of the Project, subject to the provisions of the Access Agreement described in Section 7.

E. Nature of the Project. Subject to the execution of a Conveyance Instrument and approval by Agency/City (and any other governmental agencies, as may be necessary), Developer intends to develop the Site with the Project. The design of the Project will be consistent with Agency’s/City's applicable design guidelines or as Agency/City may otherwise agree as part of the Project's land use entitlement process. Developer will also be required to obtain City Planning

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Commission and City Council approval (and any other governmental agencies, as may be necessary) as part of the Project Entitlements in order to develop the Project. In addition, assuming Developer pursues the Project, Developer will be responsible for submitting a Conveyance and Project Implementation Plan including identification of entities, respective project ownership and schedule and plan for obtaining all Project Entitlements, arranging the financing for the Project, and funding and/or constructing all on- and off-site improvements and infrastructure necessary to serve the Project. Provided, however, the parties acknowledge that any such obligations will be subject to the terms and conditions of the Conveyance Instrument as well as all other Project Entitlements. All signage for the Project will comply with the applicable provisions of the City’s municipal code, unless otherwise modified as part of the Project's entitlement process and approved by Agency/City.

F. Due Diligence. Developer shall have up to ninety (90) days from the Effective Date of this Agreement (the “Due Diligence Period”) to approve, in its sole discretion, the feasibility of acquiring, entitling and developing the Site as contemplated in the Concept Plan by: (i) reviewing the exceptions, legal descriptions and other matters contained in the preliminary title report prepared by Title Company; (ii) conducting or reviewing such surveys, investigations, studies and inspections and making or reviewing such geologic, environmental and soils tests and other studies of the Site (subject to Section 7); (iii) reviewing all other applicable due diligence materials respecting the Site; (iv) submitting a Conveyance and Project Implementation Plan as identified in Section 1(E).; and (v) commence negotiating the terms of a Conveyance Instrument mutually acceptable to Developer and the Agency/City as set forth in Section 1(A) and Section 2(A).

During the Due Diligence Period, the parties shall negotiate diligently and in good faith the terms and conditions of the Conveyance Instrument as set forth in Section 1(A). Unless Developer delivers written notice to the Agency/City approving the Conveyance Instrument form and the feasibility of acquiring, entitling and developing the Site with the proposed Project (the “Due Diligence Approval”) on or before the expiration of the Due Diligence Period, then this Agreement shall automatically terminate, any funds remaining in the Agency Expenses Deposit and in the Good Faith Commitment Deposit, not including any non-refundable deposits released to the Agency/City, shall be returned to Developer, and neither party shall have any further rights or obligations under this Agreement.

G. Environmental Review. The parties intend to diligently and in good faith work to negotiate the terms of the Conveyance Instrument during the term of this Agreement. There are many unknowns concerning the Project at this time, and during the term of this Agreement, Developer intends to undertake the studies, reports and analysis contemplated in Section 3 below (or as otherwise determined appropriate by Developer) to allow it to develop the Project concept/site plan, Project designs, environmental impact analysis (including a traffic analysis as well as other technical studies, as appropriate) and financing plans necessary to determine whether to undertake the Project, including further confirmation of the Site Plan that will be the subject of the Conveyance Instrument. The parties hereby agree that in the interest of time, the City shall consider any recommendation from Developer, but the City shall have ultimate discretion, concerning the selection of the CEQA consultant.

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Environmental analysis will occur when the Project's plans are sufficiently defined for purposes of CEQA and as otherwise required under applicable laws and regulations. Should Developer proceed with the Project, it will have the sole responsibility to pursue and obtain any necessary environmental approvals for the Project pursuant to CEQA. Developer is required to undertake environmental review of the Project (subject to City's lead agency responsibilities). Therefore, the Conveyance Instrument will include provisions requiring Developer to deposit with City, as lead agency, all funds as reasonably necessary to cover the cost of such environmental review, and City agrees to assist Developer to the fullest extent reasonable in preparing any environmental documentation and processing any environmental review that may be necessary for the Project.

H. Financial Provisions. As part of the Conveyance Instrument negotiations, the parties agree to consider the following financial provisions, with any and all such terms to be further defined in the Conveyance Instrument:

1. Developer will acquire the Site in fee interest at the purchase price of Three Million Dollars ($3,000,000) (“Purchase Price”) subject to confirmation of such Purchase Price by a fair market value appraisal to be performed during the term of this ENA by an appraiser selected by the City/Agency. The City/Agency will instruct the appraiser to consider in its appraisal whether the storm drain easement and facilities that bisect the Site impacts the fair market value of the Site. Should Developer disagree with the appraised fair market value, the City and Developer shall select a mutually-acceptable appraiser to provide an independent appraisal, provided such appraisal can be completed within thirty (30) days of the date of the City’s appraisal, and if so, negotiate the Purchase Price based on such mutually-selected appraiser’s valuation and the parties will share the cost for such appraisal on an equal basis. Based on documentation provided by the City/Agency, it is believed that the Site does not contain any contamination that would affect the Purchase Price. Notwithstanding such understanding, the Purchase Price may be subject to adjustment, subject to City/Agency’s approval, commensurate with the amount of any documented and verified costs required to address the presence of any contamination at the Site that may be found during the Due Diligence Period. Developer acknowledges that the Purchase Price or adjustment thereof shall be subject to Oversight Board (OB) approval, as further set forth in Section 2.C below.

2. Developer will be responsible for financing and constructing all on-Site improvements that are triggered by the Project or otherwise lawfully required and/or imposed by City/Agency or other government agency on the Project in connection with the Project’s land use entitlement process.

3. Developer may be required to pay for other necessary public improvements (and all of City's fees incurred in processing the Project, without assistance of Agency/City), which are triggered by the Project or otherwise lawfully required and/or imposed by Agency/City or other government agency on the Project.

4. Other conditions and terms for the close of the escrow as negotiated as part of the Conveyance Instrument, which would include a closing date only after final City approval of the Entitlements. City approval of all the Entitlements and the expiration of all applicable appeal or challenge periods to such approvals, without the filing of any such appeal or challenge by a

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third party, shall be a condition precedent to the closing of the transaction under the Conveyance Instrument, which condition precedent is for the benefit of each of Developer and Agency/City.

I. Schedule of Performance. Attached as Exhibit "C" is the parties' estimated schedule to negotiate and finalize the Conveyance Instrument within the time frame contemplated in this Agreement. The parties also anticipate that an estimated schedule to pursue the necessary Project Entitlements will be attached as an exhibit to the Conveyance Instrument, which will be negotiated during the term of this Agreement. In general, it is contemplated that said entitlement schedule will include estimated progress on critical elements of the Project's entitlement process (including any environmental review) and anticipated Project construction. The timeframes shown in attached Exhibit "C" are estimates only, and may be mutually amended by the parties hereto from time-to-time, subject to the requirements in Section 2(A) below.

J. Permitted Uses and Transfer Provisions. It is anticipated that the Conveyance Instrument will contain appropriate provisions addressing permitted uses anticipated to be constructed as part of the Project as well as transfer provisions with respect to the Site, the Project and related obligations under the Conveyance Instrument, as follows:

With respect to uses, the Conveyance Instrument will set forth the parties' expectations regarding development of the Site for Project-only purposes, with the approved Project land use entitlements governing permitted and conditionally permitted (if any) uses on the Site, consistent with those described in Recital C.

With respect to transfer of the Site and the Project and the assignment and assumption of related rights and obligations, the provisions set forth in Sections 1(J)(1) through (3) shall apply for purposes of this Agreement. Further, it is anticipated that similar provisions will be included in the Conveyance Instrument that will govern prior to Project completion. with an additional provision relating to the conveyance after Project completion as set forth in Section 1(J)(3) being included in the Conveyance Instrument as well. Notwithstanding anything to the contrary in the foregoing, any such transfer provisions in the Conveyance Instrument requiring Agency/City consent shall be limited to the time period prior to completion of the Project, and thereafter, Developer shall have the right, in its sole discretion, to transfer all or a portion of the Site and/or the Project without obtaining City consent except as otherwise provided for in Section 1(J)(3).

(1) The parties acknowledge that during the term of the ENA other non-affiliated entity(ies) may become involved in connection with the potential development of the Site, including, but not limited to, entity(ies) that have specialized expertise in the development and operation of boutique hotel, specialty grocery, and/or retail/restaurant uses, which transfer(s) shall be subject to the following provisions:

(a) Criteria for Approval of Future User. The sale(s) of portion(s) of the Site by Developer to other purchaser(s) of a commercial pad to be developed for a commercial/retail use or to any entity that will own and operate the boutique hotel is referred to below as a “Future User”.

Any Future User shall be subject to Agency’s/City’s prior written approval, which shall not be unreasonably withheld, conditioned, delayed or denied, and which approval

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shall be based on the experience, reputation for providing quality goods/services, expertise and financial ability of each said Future User to develop and operate those portions of the Project acquired by each such Future User. Agency’s/City’s approval of the Future User shall not include Agency’s/City’s approval of the type of use of the pad for which the Future User was selected by Developer.

Agency’s/City’s failure to deliver to Developer written notice of disapproval of a Future User stating the express reasons for disapproval within twenty-one (21) days after Developer has submitted its written request to Agency/City for approval of that Future User (along with sufficient information for Agency/City to ascertain the quality, viability and reputation of such Future User) shall be conclusively deemed to be Agency’s/City’s approval of the Future User. Any financial information of a Future User required by Agency/City as part of its approval of that Future User, shall be delivered to City’s third-party advisor, such as Kosmont Real Estate Services (or another third-party consultant reasonably approved by Developer) (the “City Advisor”) and subject to the confidentiality provisions of Section 3(L) below. The City Manager/Executive Director has the authority to issue the required approvals in this Section.

(2) During the term of this ENA, the parties acknowledge and agree that Developer shall not be required to obtain City consent for any assignment if and to the extent it involves any affiliate of Developer described in this Section 1(J)(2) in connection with Developer's activities under this Agreement, and Developer shall have the right, in its sole discretion, to assign its rights and delegate its duties and obligations hereunder to: any limited liability company, partnership or corporation in which Developer holds a majority interest (50.1%) in the capital and profits and in which agrees to hold such majority interest (50.1%) (“Permitted Affiliate Assignee”) for at least the term of this Agreement or at least until the expiration of the period described in Section 1(J)(3). Notwithstanding the foregoing authorization, Developer shall promptly notify the City in writing of any and all changes whatsoever in the identity of the business entities or individuals comprising the Developer.

(3) Subject to the execution of a Conveyance Instrument, and assuming Developer pursues, and Agency/City approves the Project, then Developer will agree to not convey all or any portion of the Site and/or Project without the City’s prior written consent until such time as the City issues the final Certificate of Occupancy ("CO") for the Project, provided that Developer will be permitted (without the need for Agency/City consent) to convey all or a portion of the Site and/or the Project to a Permitted Affiliate Assignee. In the unlikely event of Developer default with respect to Project financing, then the relevant lender(s) will be permitted (without the need for Agency/City consent) to foreclose on and/or sell all or a portion of the Project consistent with the terms of the underlying financing; provided such lender shall assume Developer’s rights and obligations hereunder accruing after such transfer and be bound under the terms, conditions and covenants of the Conveyance Instrument as though they were parties thereto as provided for therein.

SECTION 2. PERIOD OF NEGOTIATION

A. Period of Exclusive Negotiation (Term). Agency and Developer agree to negotiate diligently and in good faith for one hundred twenty (120) calendar days after the

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Effective Date of this Agreement in order to enter into a Conveyance Instrument, and subject to earlier termination or extension as provided herein (the "Period of Negotiation"). If upon the expiration of such Period of Negotiation, a Conveyance Instrument has not been executed, City/Agency and Developer have the ability to extend their negotiations by two (2) additional ninety (90) calendar day periods if both parties are in agreement to extend the period of time. For City/Agency, the City Manager/Executive Director shall have the authority to grant said extensions in writing. If City/Agency and Developer have not each approved and executed a Conveyance Instrument during the Period of Negotiation or extension as provided herein, this Agreement shall automatically terminate at the end thereof, and the parties shall have no further rights or obligations hereunder with the exception that Developer shall pay for Agency’s/City's actual and reasonable third-party costs and expenses incurred as of the date of termination in connection with the negotiation and performance of this Agreement, including, but not be limited to, the preparation of the Conveyance Instrument in accordance with Section 1(B) above. City/Agency and Developer may mutually agree to further extend the Period of Negotiation beyond the above-referenced 90-day periods, as evidenced by a writing signed by both parties and approved by the City Council/Agency Board. Notwithstanding anything herein to the contrary, Developer may, in its discretion and without any showing of City/Agency default, terminate the Period of Negotiation and this Agreement with ten (10) calendar days' notice to the City/Agency.

B. Agency/City Approval. Developer understands and acknowledges that if negotiations culminate in a Conveyance Instrument, the Conveyance Instrument will be effective only after, and if, the Conveyance Instrument has been considered and approved by Agency/City and the City Council/Agency Board after public hearing thereon as required by applicable laws. Agency’s/City's approval of any Conveyance Instrument will require compliance with any environmental analysis requirements under CEQA.

C. Oversight Board Approval. A Conveyance instrument executed by Agency/City may be contingent upon approval by the Los Angeles Fifth District Consolidated Countywide Oversight Board (the "OB"), which will be a condition precedent to the consummation of the transaction in the Conveyance Instrument. The Agency/City shall use its best efforts to obtain OB Approval. If OB approval is not obtained, Agency/City and Developer shall negotiate in good faith to modify the Conveyance Instrument for a period of sixty (60) days after receipt of notice of disapproval to attempt to reach an agreement that will be satisfactory to Agency/City, Developer and OB. Should the parties be unable to reach such agreement or should the OB ultimately not approve any modification to the Conveyance Instrument approved by the parties to secure OB approval (despite the Agency/City and Developer’s best efforts which may require multiple rounds of submittals to the OB), then the Developer shall retain ownership of Phase II environmental site assessments and geotechnical soils report, unless the Agency/City elects, in its sole discretion, to purchase said report(s) at a mutually agreed upon price, but in no event to exceed actual cost.

SECTION 3. DEVELOPER'S RESPONSIBILITIES.

During the Period of Negotiation, at such times as may be practical or desirable depending upon the stage of the Conveyance Instrument negotiations, it is anticipated that Developer will prepare such studies, reports, and analysis as may be necessary to permit Developer to determine the feasibility of the Project, subject to any further rights granted Developer with respect to the

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foregoing. During the Period of Negotiation, and as requested by Agency/City, Developer shall submit to Agency/City the following:

A. Boutique Hotel Feasibility Study. A study evaluating the feasibility of establishing a boutique hotel at the Site. This study will include an analysis of market conditions, economic and demographic factors, and site conditions of establishing a boutique hotel in the City at the Site. Upon its completion, Developer shall provide a copy of said study to the Agency/City in accordance with the time frame established under Exhibit C – Estimated Timeframe for Negotiation and Project Timeframes.

B. Environmental Review. Developer shall obtain and review a Phase I environmental (hazmat) report for the Site, and if recommended by the Phase I, Developer shall promptly obtain a Phase II report subject to entering into a reasonable right of entry agreement with City as contemplated under Section 7 of this Agreement. Developer shall promptly deliver copies to the Agency/City in accordance with Exhibit “C” - Estimated Timeframe for Negotiation and Project Timeframes.

C. Site Plan & Development Program. Developer shall submit a Site Plan & Development Program in accordance with Exhibit “C” - Estimated Timeframe for Negotiation and Project Timeframes. The parties anticipate that the Site Plan & Development Program will be further refined during the term of this Agreement, as part of the Conveyance Instrument negotiations, which is herein defined as specifying the conceptual framework to guide the overall development of the Project, the approved land uses on the Site, including generalized area of building pads, height of structures, total square footage, and the conceptual parking and circulation system for the Site. Assuming the parties enter into a Conveyance Instrument and Developer decides to pursue the Project, Developer will then prepare the preliminary design plan of the Project, including building elevations and design themes, as reasonably required by Agency/City, sufficient, to the extent feasible and practicable, to allow Agency/City to evaluate sign configuration, architectural design and similar issues as part of the Project's land use entitlement process.

D. Preliminary Proforma. A proforma showing the following preliminary information: an operating income and expense estimate, an estimated budget for development and construction of the Project, estimated pricing ranges (e.g., lease rates), projected range of Project value at completion, and relevant market validation (e.g., benchmark cap rates) shall be provided to Agency/City in accordance with the time frame established under Exhibit “C” - Estimated Timeframe for Negotiation and Project Timeframes. Said proforma should also show the preliminary estimated economic benefits to Agency/City for at least a ten (10) year period after completion of the Project with respect to the payment for the Site, all taxes and fees, sales/property tax revenue generation, and an estimate of anticipated construction and permanent jobs, as appropriate. Provided, however, that the parties acknowledge and agree that said proforma shall be based on information reasonably available during the term of the ENA and shall reflect the parties' understanding that such information is preliminary in nature. Said financial information shall be subject to the confidentiality provisions of Section 3(K) below.

E. Public Outreach Plan. A "Public Outreach Plan" that describes Developer's anticipated plan and approach on educating and informing the public about the Project, consistent

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with the parties' confidentiality obligations set forth in Section 3(K) below, shall be provided to Agency/City in accordance with the timeframe established under Exhibit “C” - Estimated Timeframe for Negotiation and Project Timeframes. This plan shall be subject to approval by the City and shall detail, as appropriate, specific outreach efforts and methods, including public meetings and/or individual contacts, to communicate with and receive input from local stakeholders, which shall include, but are not limited to, residents and business and property owners in the San Dimas community.

F. Leasing Activity Reports. A monthly leasing activity report each thirty (30)-day period, in accordance with the timeframe established under Exhibit “C” - Estimated Timeframe for Negotiation and Project Timeframes, that is to reasonably document the interest of potential commercial and restaurant/retail users for Developer’s proposed Project. All such reports shall be subject to the Section 3(K) confidentiality requirements.

G. Financial Capability. During the term of this ENA, Developer shall provide to Agency/City a preliminary financing plan (including financing sources and methods), CPA-certified financial statements, and/or other information, in accordance with Exhibit “C” - Estimated Timeframe for Negotiation and Project Timeframes, for the purpose of documenting, to Agency’s/City's reasonable satisfaction, including an updated financing plan before the parties approve the Conveyance Instrument, Developer's financial capacity to proceed with the contemplated transaction. In connection with any assignment to a Permitted Affiliate Assignee, Developer shall also provide a written statement to Agency/City that documents the percentage of ownership that Developer holds in such Permitted Affiliate Assignee, as defined in Section 1(J)(2) in order to confirm that said Assignee is a Permitted Affiliate Assignee and has the financial capabilities to perform obligations under this Agreement and any Conveyance Instrument. Said financial information shall be subject to the confidentiality provisions of Section 3(K) below.

H. Partners. Developer will agree to the disclosure of Developer's principals, partners, joint ventures, and consultants that will be materially involved in the acquisition and development of the Site in accordance with Exhibit “C” - Estimated Timeframe for Negotiation and Project Timeframes and as may be reasonably requested by Agency/City.

I. Development Schedule. Developer shall submit to the City/Agency a schedule of development setting forth the proposed timetable for the commencement, substantial completion and final completion of the Project in accordance with Exhibit “C” - Estimated Timeframe for Negotiation and Project Timeframes.

J. Additional Documentation. City/Agency reserves the right to and may reasonably request any additional documentation, including additional reports, studies, analyses and other information, from Developer in order to negotiate the Conveyance Instrument as contemplated hereunder. Upon receiving such a request, Developer shall provide such additional documentation to City/Agency pursuant to a mutually agreed upon deadline.

K. Confidentiality. Agency/City agrees, to the maximum extent permitted by the California Public Records Act (Government Code Section 6253 et seq.) or other applicable local, state or federal disclosure laws (collectively, "Public Disclosure Laws"), to keep confidential all proprietary financial and other information submitted by Developer to Agency/City in connection

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with Developer's satisfaction of its obligations under this Agreement and any Conveyance Instrument (collectively, "Confidential Information"). Notwithstanding the preceding sentence, City may disclose Confidential Information to its officials, employees, agents, attorneys and advisors, but only if and to the extent necessary to carry out the purpose for which the Confidential Information was disclosed consistent with the rights and obligations provided for hereunder.

Developer acknowledges that Agency/City has not made any representations or warranties that any Confidential Information Agency/City receives from Developer will be exempt from disclosure under any Public Disclosure Laws. In the event the City Attorney/Agency Counsel determines that the release of any Confidential Information is required by Public Disclosure Laws, or by order of a court of competent jurisdiction, Agency/City shall promptly notify Developer in writing of Agency’s/City's intention to release the Confidential Information so that Developer has the opportunity to evaluate whether to object to said disclosure and/or to otherwise take whatever steps it deems necessary or desirable to prevent disclosure, provided that Agency/City shall not be liable for any damages, attorneys' fees and costs for any alleged failure to provide said notice (although such failure shall be considered a Agency/City default pursuant to Section 8(F) below). If the City Attorney/Agency Counsel, in his or her discretion, determines that only a portion of the requested Confidential Information is exempt from disclosure under the Public Disclosure Laws, City/Agency may redact, delete or otherwise segregate the Confidential Information that will not be released from the non-exempt portion to be released.

Developer acknowledges that in connection with the Agency Board’s/City Council's consideration of any Conveyance Instrument as contemplated by this Agreement, Agency/City will need to present a summary of Developer's anticipated costs of development, together with such other information as may be reasonably required for a staff report accompanying the proposed Conveyance Instrument. Provided, however, that to the extent Developer reasonably determines it is necessary to protect Confidential Information relating to financial data, said information may be delivered directly to a third-party economic consultant. If this Agreement is terminated without the execution of a Conveyance Instrument, Agency/City shall return to Developer any and all Confidential Information.

Except for any disclosure that may be required under Public Disclosure Laws, during the Period of Negotiation, no public statements about the potential financial terms to be negotiated as part of the Conveyance Instrument shall be made by either Developer or Agency/City (other than those statements made to each party's respective agents, consultants and employees and, in the case of Developer, those statements made to prospective tenants or retailers for the Project, if any). Notwithstanding anything to the contrary in the foregoing, the parties shall not be liable for any damages, attorneys' fees and costs to the other party for any alleged public statement as provided above; provided, however, that if either party makes any such public statement in violation of this Section 3(K), then such action shall constitute a default under Section 8(F) below and be subject to available remedies pursuant to Section 8(G) below.

SECTION 4. AGENCY'S/CITY’S DISCRETION; NON-WAIVER OF POLICE POWERS.

The parties acknowledge that neither party is under any obligation to enter into any proposed Conveyance Instrument or other agreement as it relates to the Project, subject to the

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parties' obligations to negotiate diligently and in good faith as set forth in this Agreement. Any actions taken or investments made by Developer in anticipation of a proposed Conveyance Instrument prior to such agreement being considered and approved by the Agency Board/City Council and signed and delivered, are undertaken at Developer's sole risk and expense. Prior to the execution and delivery of a Conveyance Instrument by Agency/City, any reliance by Developer on any representations or promises by Agency/City or Agency/City staff or consultants, or individual Councilmembers, is undertaken at Developer's sole risk and expense except for any representations or promises set forth in this Agreement.

The parties understand that Agency/City is reserving the right to exercise its discretion as to all matters with respect to the Conveyance Instrument and the Project which Agency/City is, by law, entitled or required to exercise, at its discretion; nothing in this Agreement shall be construed as having the effect of waiving or limiting Agency’s/City's police powers and exercise of discretion. To this end:

1. The parties understand that Agency/City has the complete and unfettered discretion to reject the Project and/or Conveyance Instrument as provided for under applicable laws and regulations. As noted above, except for any representations or promises set forth in this Agreement, the risk of loss of any actions taken or investments made in connection with the Site and/or the Project by Developer prior to Conveyance Instrument approval and execution shall be absorbed entirely by Developer, as provided for in this Section 4.

2. The duty of Agency/City to execute the Conveyance Instrument shall be conditioned upon the successful review and approval of all necessary findings and conclusions which the Agency Board/City Council is required to make, including all necessary findings and determinations required under CEQA as applicable under relevant state and local land use provisions. As to any matter which Agency/City may be required to exercise its unfettered discretion in advancing the Project to completion, nothing herein, nor to be contained in the Conveyance Instrument, shall obligate Agency/City to exercise its discretion in any particular manner, and any exercise of discretion reserved hereunder or required by law, shall not be deemed to constitute a breach of Agency’s/City's duties under this Agreement.

3. By its execution of this Agreement, Agency/City is not committing itself to any particular course of action with respect to the Conveyance Instrument or the Project or agreeing to undertake any activity requiring the subsequent exercise of discretion by Agency/City, or any department thereof including, but not limited to, the approval and execution of a Conveyance Instrument, the approval of the Project Entitlements, any development proposal or land use regulation governing the Site or the Project, the provision of financial assistance for the development of any public or private interest in real property, or any other such act or approval.

4. This Agreement does not constitute a disposition of property and does not require a public hearing. Agency’s/City's execution of this Agreement is merely an agreement to enter into a period of exclusive negotiations according to the terms hereof, reserving final discretion and approval by Agency/City as to any proposed Conveyance Instrument and the Project, and all proceedings and decisions in connection therewith.

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SECTION 5. AGENCY’S/CITY'S RESPONSIBILITIES.

A. Agency/City Assistance. Agency/City shall cooperate fully in providing Developer with appropriate information, documentation and assistance as it relates to Developer's evaluation and due diligence of the Site and potential viability of the Project, but such assistance shall not include financial assistance unless specifically provided herein. Further, subject to Developer confirming the Project description and Developer's payment of all reasonable costs to be incurred by Agency/City as provided for herein, Agency/City shall use diligence and good faith to timely and efficiently conduct any requisite CEQA review that will be triggered in connection with the Agency Board’s/City Council's consideration of the Conveyance Instrument in accordance with the estimated timeframes set forth in attached Exhibit "C".

B. Preparation of Agreement The Conveyance Instrument shall include, among other relevant terms, the agreements between Agency/City and Developer regarding the design of the Project and other business terms mutually determined necessary or desirable by the parties for inclusion therein. Agency/City shall provide Developer with an initial draft of the Conveyance Instrument; however, in no event shall Agency/City commence the actual drafting of a Conveyance Instrument unless and until Developer has chosen one, single concept plan for the Project (subject to Project revisions determined appropriate by the parties) and submitted a single preliminary plan therefor.

If the negotiations culminate in a Conveyance Instrument signed by Developer, such agreement shall become effective only after and if said Conveyance Instrument has been considered and approved by the Agency Board/City Council.

SECTION 6. CONVEYANCE INSTRUMENT DEPOSIT.

No later than five (5) days after the Effective Date of the ENA, Developer shall make a deposit in the form of a cash deposit, cashier's check or other form of security reasonably acceptable to Agency/City in the amount of Twenty-Five Thousand Dollars ($25,000.00) ("Conveyance Instrument Deposit"), subject to the provisions of this Section 6 and Sections 8(F), (G) below. The Conveyance Instrument Deposit shall be deposited in an interest-bearing escrow account with Fidelity National Title Insurance Company, 3237 East Guasti Road Suite 105, Ontario, CA 91761; (909)978-3020; Attn: Mary Lou Adame; [email protected] with interest accruing for Developer's benefit and shall be nonrefundable and released to City, but applicable to the Purchase Price, no later than five (5) days after the expiration of the Due Diligence Period so long as Developer has previously notified City of Developer’s intention to proceed;

The Conveyance Instrument Deposit described in this Section 6 is non-refundable except in the event of Agency/City default under Section 8(F) below or if Agency/City does not approve and execute the Conveyance Instrument or the failure for whatever reason of the City/Agency to gain OB or other oversight agency approval of the Conveyance Instrument, in which case all such deposits shall be refunded to Developer within five (5) days thereof.

Developer under the Conveyance Instrument shall make an additional deposit to augment the Conveyance Instrument Deposit equal to Twenty-Five Thousand Dollars ($25,000.00) to be deposited by Developer no later than five (5) days following the approval of the Conveyance


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Instrument by the OB and so long as no challenge or litigation is then pending relating to the Conveyance Instrument. The Conveyance Instrument will provide that such additional deposit shall be non-refundable, except in the event of Agency/City default under the terms of the Conveyance Instrument.

SECTION 7. ACCESS TO SITE.

During the term of this ENA, Agency/City shall provide Developer reasonable access to all portions of the Site for the purpose of obtaining data and making surveys and tests necessary to evaluate the development potential of the Site and otherwise to conduct the land use due diligence relating to the Project as contemplated hereunder, including, without limitation, the right to make borings to investigate the soils and environmental condition of the Site. Said right of access shall be memorialized within five (5) business days of the Effective Date by both parties executing an access agreement ("Access Agreement"), which shall contain standard, mutually acceptable terms, including those relating to Developer's indemnification obligations and Agency’s/City's insurance requirements (as set forth in attached Exhibit "D").

SECTION 8. MISCELLANEOUS.

A. Brokerage Commissions. Agency represents it has engaged Kosmont Real Estate Services in connection with the potential sale of the Site and the transaction contemplated hereunder. Developer agrees to hold City harmless from any claim by any other broker, agent, or finder retained by Developer in connection with said transaction As shall be set forth more fully in the Conveyance Instrument and assuming the transaction contemplated thereunder closes escrow, Agency shall pay a real estate commission fee to Kosmont Real Estate Services in the amount of six percent (6%) of the purchase price for the Site. Developer's indemnification obligations set forth in this Section 8(A) shall survive the termination or expiration of this Agreement for a period of five (5) years from the Effective Date.

B. Copies of Documents. If the negotiations contemplated by this Agreement do not result in the execution of a Conveyance Instrument, except as a result of a breach of this Agreement by City/Agency, Developer shall provide City/Agency, within seven (7) days of the termination of this Agreement, at no cost or expense to City, with copies of any final versions of third party consultant, contractor, or subcontractor reports, studies, analysis, site plan layouts, engineering studies, memorandums, or similar documents prepared in connection with the Site and the Project during the Period of Negotiation, excluding legally privileged or otherwise confidential items or proprietary financial information. Developer shall make said copies available to Agency/City free of charge. Developer may retain copies of such documents for its own use and shall have an unrestricted right to use such documents, including without limitation all concepts embodied therein.

Such delivery of copies of documents by Developer to Agency/City shall be made without any representation, warranty, or liability whatsoever by Developer as to the ownership status, accuracy or sufficiency of the contents of such documents and shall be made subject to the rights of the preparers of such documents including, without limitation, the intellectual property rights (if any) associated with such documents. Agency/City acknowledges that any use of such

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documents for the Site or other project(s) and/or use shall be at Agency’s/City's or the applicable third party's sole risk and without any liability to Developer whatsoever.

C. No Personal Liabilities. Nothing in this Agreement shall create any personal obligation or liability of any member of the Agency Board/City Council, the City Manager/Executive Director or any Agency/City staff member, employee, attorney or agent of Agency/City for any obligation of Agency/City under this Agreement and, conversely, nothing in this Agreement shall create any personal obligation or liability of any individual, partner, member, principal, shareholder, employee, or agent of Developer for any obligation of Developer under this Agreement. All obligations of Developer as set forth herein shall be the joint and several obligations of Developer and any affiliate of Developer involved, at Developer's election, in Developer's activities under this Agreement.

D. Amendment This Agreement may only be amended by a document in writing signed by the parties.

E. Notices. All notices, including, but not limited to, all approvals and consents, required or permitted under this Agreement shall be delivered in person, by messenger, by overnight mail courier, or by registered or certified mail, postage prepaid, return receipt requested, to each party at its address shown below, or to any other notice address designated in writing by such party:

Agency: Successor Agency of the Former San Dimas RDA 245 East Bonita Avenue San Dimas, CA 91773 Attention: Executive Director

With a copy: Aleshire & Wynder, LLP 2361 Rosecrans Avenue, Suite 475 El Segundo, CA 90245-4916 Attention: Jeff Malawy, Successor Agency Counsel

Developer: Pioneer Square, LLC 8800 Venice Blvd, Suite 316

Los Angeles, CA 90034 Attention: Michael Dieden

With a copy: Jeffrey Graham, Esq. 17411 Revello Drive Pacific Palisades, CA 90272

F. Default. Either party may terminate this Agreement if the other party should fail to comply with and perform in a timely manner any material obligation to be performed by such other party under this Agreement, provided the party seeking to terminate this Agreement shall provide at least ten (10) calendar days' written notice to the other party of such failure or nonperformance and such other party shall have such ten (10) calendar day period within which to cure such failure or nonperformance (or such longer period as may be reasonably necessary to cure such failure or

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nonperformance if such failure or nonperformance cannot reasonably be cured with such 10-day period). Termination shall be the sole remedy for default, subject to Section 8(G) below. In no event shall either party be liable for monetary damages, attorney fees and costs, or any other cost or expense for the default or termination of this Agreement, and any such right to recover damages is expressly waived. Notwithstanding the foregoing, in no event shall any cure period hereunder extend the term of this Agreement and in no event shall Agency/City terminate this Agreement absent a finding of uncured material default on the part of Developer.

G. Remedies. In the event of an uncured default by Agency/City, Developer's sole remedy shall be to terminate this Agreement, upon which Developer shall be entitled to the return of the remaining balance of the Agency/City Expenses/CEQA Expenses Deposit, the full amount of the Conveyance Instrument Deposit and any interest earned thereon, and any amounts per Section 2.C above. Following such termination and the return of the balance of the Agency/City Expenses/CEQA Expenses Deposit and the Conveyance Instrument Deposit (and any interest earned thereon), neither party shall have any further right, remedy or obligation under this Agreement, except for indemnification obligations as set forth in Sections 8(A) above and 8(H) below. Notwithstanding the foregoing, if Agency/City, in bad faith, negotiates with any other person or entity with respect to the Site during the Period of Negotiation, then upon termination of this Agreement, Developer may seek injunctive relief to prohibit City from selling or using the Site during the Period of Negotiation and for a period of six (6) months thereafter; in addition, regardless of Developer obtaining any such injunctive relief, if Developer terminates this Agreement as a result of Agency’s/City's material default, City shall not market the Site or solicit offers for the Site until the term of this Agreement has expired.

In the event of an uncured default by Developer, Agency’s/City's sole remedy shall be to terminate this Agreement and to retain the City Expenses Deposit and that portion of the Conveyance Instrument Deposit that has already been released to Agency/City pursuant to Section 6 above, and any interest earned thereon. Following such termination, neither party shall have any right, remedy or obligation under this Agreement, except as otherwise expressly set forth herein.

H. Indemnification. Developer shall indemnify, defend, and hold Agency/City and its respective elected and appointed officials, officers, attorneys, employees and agents (collectively, "Agency/City Indemnitees") harmless from any and all claims, actions, suits and other liability (collectively, "Claims") asserted against Agency/City resulting from or in connection with Developer's execution of this Agreement and/or Developer's performance under this Agreement. This indemnity shall survive the expiration or termination of this Agreement. In the event that any Claim should be filed against any of the Agency/City Indemnitees which would require indemnification by Developer hereunder, Agency/City shall notify the Developer of such claim in a timely manner to permit Developer the opportunity to provide adequate representation to the Agency/City Indemnitees with respect to any such Claim. Notwithstanding anything in the foregoing to the contrary, this Section shall not be construed to mean that Developer shall hold the Agency/City Indemnitees harmless and/or defend them to the extent of any Claim(s) arising from the sole negligence, willful misconduct or illegal acts of any of the Agency/City Indemnitees and/or the failure of the Agency/City Indemnitees to follow any procedure or law applicable to the Agency/City.

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I. General Provisions. This Agreement and all terms and conditions hereof shall be governed by and construed and enforced in accordance with the laws of the State of California. Any term herein can be waived only by a written waiver signed by the party against whom such waiver is to be asserted. This Agreement may be executed in counterparts, each of which when so executed shall be deemed an original, and all of which, together, shall constitute one and the same instrument. The parties acknowledge that this Agreement was jointly prepared by them, by and through their respective legal counsel, and any uncertainty or ambiguity existing herein shall not be interpreted against either of the parties, but otherwise shall be interpreted according to the application of the rules on interpretation of contracts. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be considered independent and severable from the remainder, the validity of which shall remain unaffected. Failure to insist on compliance with any term, covenant or condition contained in this Agreement shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any one time or more times be deemed a waiver or relinquishment of any right or power at any other time or times.

J. Recitals. The Recitals preceding the terms of this Agreement are incorporated into the terms hereof by this reference.

K. Entire Agreement. This Agreement constitutes the entire agreement between the parties who have executed it and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied between the parties to this Agreement. The parties to this Agreement each acknowledge that no representations, inducements, promises, agreements, or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement; that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty; and that no representation, inducement, promise, agreement or warranty not contained in this Agreement, including, but not limited to, any purported supplements, modifications, waivers, or terminations of this Agreement shall be valid or binding unless executed in writing by both of the parties to this Agreement.

L. Authority. Each party to this Agreement represents and warrants to the other that (i) such party is duly organized and existing; (ii) the person or persons executing and delivering this Agreement on such party's behalf are duly authorized to do so; (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement; and (iv) entering into this Agreement does not violate any provision of any other agreement to which said party is bound.

[Signatures appear on following page]

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first above written and agree to all terms and conditions herein.

“AGENCY” “SAN DIMAS SUCCESSOR AGENCY, a public body corporate and politic By:_______________________________ Brad McKinney, Executive Director

ATTEST: Debra Black, Successor Agency Clerk APPROVED AS TO FORM: ALESHIRE & WYNDER, LLP Jeff M. Malawy, Successor Agency Counsel

“DEVELOPER” PIONEER SQUARE, LLC a California limited liability company _____________________________________ By: Michael Dieden _____________________________________ By: ____________________

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Exhibit "A" SITE LEGAL DESCRIPTION

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Exhibit “B” REQUIRED PROJECT FEATURES/ELEMENTS

Project Concept: A multi-modal transit integrated village combining hospitality, residential and commercial uses (retail, entertainment, restaurants) surrounding a public plaza that creates a sense of place and engagement, thereby intended to attract future Metro and Foothill Transit commuters, and also patrons from throughout San Gabriel Valley. Developer may have some reasonable flexibility, provided Developer shows reasonable evidence therefor, supporting the alteration of a design feature herein, subject to the City’s approval; however, features described below may not be eliminated (unless otherwise agreed in writing by City/Agency). The following uses will be further refined in the Conveyance Instrument, subject to the parties’ consultation and further evaluation of applicable market feasibility studies and due diligence materials.

1. Developer will offer approximately 40 dwelling units, having a variety of for-sale

housing types at diverse price points and at various densities to be located on the preliminary site plan delivered by Developer.

2. The retail/commercial uses may include a bookstore, dining (provided dining

facilities shall not include any fast food restaurant, except as expressly approved by the City), a small grocer, creative office space and health & exercise uses among others, which comprise approximately twenty-eight thousand (28,000) useable square feet of retail and commercial service uses and fifteen thousand (15,000) office/flex space.

3. A boutique hotel with approximately 60-80 rooms, located on the NW corner of the

property lot at Bonita and Acacia. The hotel will have a lobby with restaurant and bar services, a pool, and a roof-top bar with views of the San Gabriel Mountains and the Metro.

4. A parking program will be agreed upon by the Agency/City and Developer under

which the parking will be sustainable both economically and environmentally. The parking facility will be sub and semi-subterranean estimated to contain 200 parking spaces.

5. The Project will prioritize the pedestrian experience, with buildings and spaces

designed to be inviting to pedestrians, cyclists and motorists.

6. The Project will make for an inviting access and relationship to Pioneer Park located immediately adjacent to the Project.

7. The Project will provide multi-modal connections to adjacent developments and

facilities in the area.

8. The Project will seek to achieve a high sustainability standard that will include water-wise landscaping that complements the various architectural styles and themes of the project, which may include water conservation in the landscape as not only a short-term response to the current drought but also as a long-term

23

sustainability practice.

9. PSQ will offer a project phasing program, subject to approval by the Owner, with the goal of holding construction inconvenience to a minimum to the neighborhood and street system.

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Exhibit "C" ESTIMATED TIMEFRAME FOR NEGOTIATION AND PROJECT TIMEFRAMES

# Activity Responsible Party Date

1. Developer submits Agency Expenses Deposit ($25,000) (pursuant to Section 1.B.)

Developer Within 5 days from the Effective Date of the ENA

2. Developer submits Conveyance Instrument Deposit ($25,000) (pursuant to Section 6)


3.

City/Agency shall provide to Developer copies of all currently existing plans, studies and other written information regarding the Site in its possession, to the extent not previously delivered to Developer and to the extent material to the Project and not subject to any attorney-client or attorney work product privilege or other privilege.

City/Agency Within 10 days from the Effective Date of the ENA

4. Developer submits Boutique Hotel Market Study (pursuant to Section 3(A) of the ENA)


5.

Development submits Phase 1 environmental assessment (pursuant to Section 3(B) of the ENA)


6.

Development submits revised Site Plan & Preliminary Development Program (pursuant to Section 3(C) of the ENA)


7. Developer submits preliminary proforma (pursuant to Section 3(D) of the ENA)


8.

Developer and City staff shall determine the likely type and schedule for obtaining entitlements necessary for construction of the Project including, but not limited to, discretionary permits

Developer & City/Agency

Within 75 days from the Effective Date of the ENA

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# Activity Responsible Party Date

9. Developer submits proposed Public Outreach Plan to City (pursuant to Section 3(E) of the ENA)

Developer Within 90 calendar days from the Effective Date of the ENA

10.

Developer to submit a Conveyance and Project Implementation Plan including identification of all development entities, respective project ownership and schedule and plan for obtaining all Project Entitlements and other items

Developer Concurrent with or prior to expiration of Due Diligence Period

11. Developer to conduct due diligence of the Site (pursuant to Section 1 (F) of the ENA)


12.

Developer begins to submit a monthly leasing activity report (pursuant to Section 3(F) of the ENA)

Developer Commences upon expiration of Due Diligence Period

13.

Developer provides preliminary financing plan (pursuant to Section 3(G) of the ENA) and updated financing plan

Developer

Within 90 days from the Effective Date of the ENA for the preliminary financing plan, before approval of the Conveyance Instrument and updated financing plan

14.

Developer provides disclosure of Developer's principals, partners, joint ventures, and consultants to City (pursuant to Section 3(H) of the ENA)


15.

Developer shall submit a schedule of development setting forth the proposed timetable for the commencement, substantial completion and final completion of the Project

Developer Within 90 days after Effective Date of the ENA

16. Developer submits CEQA Expenses Deposit ($50,000) (pursuant to Section 1.C.)

Developer Within 5 days from the

effective date of the Conveyance Instrument

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Exhibit "D" CITY INSURANCE REQUIREMENTS

Developer, its affiliates or contractors shall provide the following insurance policies, subject to the requirements outlined below:

Commercial General Liability Insurance. Developer shall keep or cause to be kept in force for the mutual benefit of City, City, and Developer comprehensive broad form commercial general liability insurance against claims and liability for personal injury or death arising from the use, occupancy, disuse or condition of the Site, improvements or adjoining areas or ways, affected by such use of the Site or for property damage, providing protection of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) general aggregate.

Builder's Risk Insurance. Before commencement of any construction activities, Developer shall procure and shall maintain in force "all risks" builder's risk insurance including vandalism and malicious mischief, covering improvements in place and all material and equipment at the job site furnished under contract, but excluding contractor's, subcontractor's, and construction manager's tools and equipment and property owned by contractor's or subcontractor's employees, with limits and at least One Million Dollars ($1,000,000.00) per occurrence.

Worker's Compensation. Developer shall also furnish evidence that any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries workers' compensation insurance as required by law. Employer’s liability limits usually should be One Million Dollars ($1,000,000) to be equal to general and auto liability limits.

Auto and Other Insurance. If any vehicles are to enter the Property, automobile liability coverage in the amounts of One Million Dollars ($1,000,000) combined single limit (CSL) per accident. Developer may procure and maintain any insurance not required by this Agreement.

Insurance Policy Form, Content and Insurer.

All insurance required by express provisions hereof shall be carried only by responsible insurance companies licensed to do business by California, rated "A" or better in the most recent edition of Best Rating Guide, the Key Rating Guide or in the Federal Register, and only if they are of a financial category Class IX or better. All such policies shall contain language, to the extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any act of negligence of City, Agency, or Developer that might otherwise result in the forfeiture of the insurance, (ii) the insurer waives the right of subrogation against City and against City's/Agency's agents and representatives; (iii) the policies are primary and noncontributing with any insurance that may be carried by City; and (iv) the policies cannot be canceled or materially changed except after thirty (30) days' written notice by the insurer to City or City's/Agency's designated representative. Developer shall furnish City with copies of all such policies promptly on receipt of them, or with certificates evidencing the insurance. City and Agency shall be named as additional insureds on all policies of insurance required to be procured by the terms of this Agreement.

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(LIMITS: HIGHER LIMITS MAYBE REQUIRED BASED UPON THE EXPOSURE OF THE CONTRACT, SOME FACTORS INCREASING EXPOSURE TO LOSS INCLUDE LARGE CONTRACTS, THE TYPES AND NUMBER OF SUBCONTRACTORS, CONSTRUCTION OF MULTI-STORY BUILDINGS, USE OF EXPLOSIVES/BLASTING, CONSTRUCTION NEAR PIPELINES OR TRENCHES, HIGHWAYS OR UTILITY LINES, PROXIMITY TO PUBLIC OR POTENTIAL FOR CATASTROPHIC LOSS.)

The Agency shall be named as an Additional Insured. Include endorsement with certificate.

The Certificate holder shall be indicated as:

________________________________________ 245 East Bonita Avenue San Dimas, CA 91773

Certificate must indicate thirty (30) days minimum for cancellation notice.

Name of the insurer and policy number shall be indicated.

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Exhibit "E" PRELIMINARY SITE PLAN [PLACEHOLDER]


To: Honorable Mayor and Members of the City Council For the meeting of August 25, 2020

From: Jeff Malawy, City Attorney

Subject: Conditional Settlement and Release Agreement with Southwest Voter Registration Education Project Regarding Alleged Violation of the California Voting Rights Act; and Resolution Declaring Intention to Transition From At-Large To District-Based City Council Elections

_____________________________________________________________________________

BACKGROUND

The members of the San Dimas City Council are currently elected at-large. In an at-large election system, every voter in the City votes for each member of the City Council, regardless of where the voter or the candidate resides.

On March 23, 2020, the City received a letter from attorney Kevin I. Shenkman (Attachment A) (Letter). Mr. Shenkman wrote the Letter on behalf of his client, the Southwest Voter Registration Education Project, which he alleges has San Dimas residents as some of its members. The Letter alleges the City’s at-large election system violates the California Voting Rights Act (Elections Code sections 14025 to 14032). Specifically, Mr. Shenkman alleges the City’s at-large elections

SUMMARY On March 23, 2020, the City received a letter alleging the City’s at-large system of electing City Councilmembers violates the California Voting Rights Act because it allegedly abridges the rights of Latino voters. The letter threatens litigation if the City does not change its at-large election system.

If the City transitions to a district-based election system before the 2020 Census results are released in mid-2021, the district map adopted by the City would never be used in any election, because the City would need to re-district after the 2020 Census results are released and in time for the City’s 2022 City Council election.

The proposed settlement agreement allows the City to delay the process and final decision whether to transition to district elections until the second half of 2021, after the 2020 Census results are released.

Item 6a Page 1

illegally abridge the rights of Latino voters. The Letter further states, even though in the 2017 and 2020 municipal election there were four Latino candidates, none were elected. The 2010 census showed Latinos constitute about 31.44% of the City’s population, yet there has never been a Latino candidate elected to the City Council. Based on those allegations, Mr. Shenkman and his client demand the City begin the process of changing its system of at-large elections and threaten legal action if the City does not do so. Under a district-based system of elections, the City would be divided into geographic districts, and City Council candidates may only run for the seat representing the district in which they reside, and voters may only vote for the candidates from their district. The City currently has a directly elected Mayor, which is a separate office from the other members of the City Council and is elected at-large. The Mayor can continue to be elected at-large even under a district-based election system for the other city councilmembers. DISCUSSION The California Voting Rights Act (CVRA) and Experiences of Other Cities

The CVRA was adopted in 2002 and makes it illegal to have at-large elections that impair the ability of a “race, color, or language minority group” (i.e. a “protected class”) to elect candidates of its choice or impair its ability to influence the outcome of an election. (Elections Code 14027, 14026.) The CVRA states “one circumstance that may be considered in determining a violation of [the CVRA] is the extent to which candidates who are members of a protected class and who are preferred by voters of the protected class . . . have been elected to the governing body of a political subdivision”. (Elections Code 14028(b).)

A judge has broad authority to implement appropriate remedies to address CVRA violations (Elections Code 14029). The most common remedy has been to order a municipality to change from at-large elections to district-based elections, and to order the municipality to pay the plaintiff’s attorney fees (Elections Code 14030).

The City Attorney’s Office is not aware of any city or other local agency that has obtained a final court decision successfully defending itself from a CVRA lawsuit. Many, many cities have changed from at-large to district-based elections in response to CVRA letters like Mr. Shenkman’s, including local cities such as South Pasadena, Monterey Park, Arcadia, Duarte, Glendora, West Covina, Claremont, Rancho Cucamonga, Chino, Chino Hills, Fontana, Eastvale, Jurupa Valley, and Corona. Statewide, over 100 of the state’s 482 cities have transitioned from at-large elections to district elections with 57 transitioning in November 2018 alone.

Cities that have attempted to mount a defense in court have paid large attorney fees awards to the plaintiffs. The City of Palmdale paid $4.5 million in a settlement agreement after fully litigating a CVRA case. The City of Modesto paid $3 million. In 2019, the City of Santa Clara was ordered to pay $3.3 million. The City of Anaheim paid $1.2 million. The City of Whittier was ordered to pay $1 million. These are just some examples. And these payments are in addition to the attorney fees paid to the city’s own attorneys to defend the lawsuit.

Item 6a Page 2

In addition to paying those amounts, the cities in those cases were also ordered to change to district elections, or agreed to change in a settlement agreement. In one example, a lawsuit lost by the City of Highland, the judge ordered the city to change to district elections prior to the November 2016 election and ordered every seat on the Highland City Council be contested at the November 2016 election.

To date, no city or other agency has ever been successful in a final court decision.

The CVRA “Safe Harbor” Period and Extensions Due To COVID-19

The CVRA provides a “safe harbor” process by which a city can prevent a plaintiff from suing and limit the plaintiff’s attorney fees award to a maximum of $30,000, if the City voluntarily and quickly transitions to district elections within a prescribed “safe harbor” period after receiving a CVRA Letter like Mr. Shenkman’s.

A plaintiff cannot file a CVRA lawsuit without first sending a notice letter to the city, like Mr. Shenkman’s Letter, and then waiting 45 days after the city receives the letter. (Elections Code 10010(e)(1-2).) If during that 45 days, the city adopts a resolution declaring its intention to transition from at-large to district-based elections, then the plaintiff may not bring a lawsuit for 90 days after the adoption of that resolution. (Elections Code 10010(e)(3).) This is called the 90-day “safe harbor”.

To transition to district elections, the city would need to hold four public hearings for the public to consider and provide input on proposed district maps, and then adopt an ordinance to select a map and formally change to a district election system. (Elections Code 10010(a).)

If, before the end of the 90-day safe harbor, the city holds the four required public hearings and adopts an ordinance transitioning to district elections, then the plaintiff cannot sue the city, and the city must pay the plaintiff “only” $30,000 in attorney fees. (Elections Code 10010(f).)

However, if the city does not adopt the resolution of intent within the 45-day period, or does not adopt an ordinance changing to district-based elections within the 90-day safe harbor period, then the plaintiff may file a lawsuit and there is no cap on the attorney fees award to the plaintiff.

San Dimas received Mr. Shenkman’s Letter on March 23, 2020. The 45-day period to adopt a resolution of intent would ordinarily have expired on May 7, 2020. But on April 9, 2020 due to COVID-19, the Governor signed Executive Order N-48-20 which “paused” both the 45-day period and the 90-day safe harbor period, as of March 20, 2020, until further notice from the Governor. The purpose of the Executive Order is to protect public health and safety by allowing cities to wait to hold public hearings for transition to districts until it is safe for the public to participate in person at those public hearings.

Based on the Executive Order, the 45-day period for San Dimas to adopt a resolution of intent has not yet begun, as it was paused on March 20 – three days before the City received Mr. Shenkman’s Letter.

Item 6a Page 3

The Governor could terminate the Executive Order at any time, without warning, and then a 45-day clock would start for the City to adopt a resolution of intent, and then a 90-day clock to hold four public hearings and adopt an ordinance transitioning to district elections.

Due to Redistricting Laws, a Districts Map Adopted Prior to August 2021 Will Never Be Used

All jurisdictions with district elections must re-district (i.e. adopt a new district map) every 10 years after the federal census results are released and in time for its next election. (Elections Code 21601, 21602.)

The next City Council election in San Dimas is scheduled for March 2022. Therefore, if San Dimas adopts an ordinance to select a districts map and transition to district elections based on 2010 Census data before the 2020 Census results are released in mid-2021, the map would never be used in any election. The City would need to re-district and select a new map based on the 2020 Census results after they are released and in time for the next City Council election in 2022.

To avoid going through the process twice (and the first time adopting a meaningless map that will never be used), it would make more sense to wait until the 2020 Census results are released in mid-2021, use those to create a districts map, and then adopt an ordinance transitioning to district elections to be used in the City’s 2022 election.

Proposed Settlement Agreement

To avoid the need to go through the process of adopting a districts map that will never be used, while still allowing the City to limit its exposure to only $30,000, the City Attorney’s Office negotiated a settlement agreement with Mr. Shenkman and his client (Plaintiff) (Attachment B), subject to City Council approval. It is already signed by the Plaintiff. The settlement agreement allows the City to delay the process for transitioning to districts to the second half of 2021 after the 2020 Census results are released. The settlement agreement provides:

1. By September 8, 2020, the City Council will consider adopting the resolution of intent to transition to districts, which is attached as Exhibit A to the settlement agreement. The resolution of intent states the City intends to transition to districts in time for the next San Dimas City Council election. It is not binding. Even after adopting the resolution, the City Council can decide later not to transition to districts.

2. If the City adopts the resolution of intent by September 8, the City must pay $30,000 to Plaintiff, and Plaintiff waives its right to sue the City until December 31, 2021.

3. After the 2020 Census results are released in mid-2021, the City Council can either (1) conduct the 4 required public hearings and adopt an ordinance transitioning to districts or (2) not adopt an ordinance transitioning to districts. If the City Council does not adopt an ordinance transitioning to districts by December 31, 2021, Plaintiff can sue the City to challenge the at-large election system without any cap on Plaintiff’s attorney fees award.

Without the settlement agreement, in order to limit its exposure to $30,000 the City would have to complete the district transition process within the 90-day safe harbor period after the Governor terminates Executive Order N-48-20, which could be any day.

Item 6a Page 4

Additionally, without the settlement agreement, the City would likely have to adopt a districts map before the 2020 Census results are released, which would never be used in any election. The settlement agreement avoids that needless map adoption by allowing the City to delay its district map adoption until after the 2020 Census results are released.

Senate Bill 970 Will Move San Dimas’ March 2022 Election to June 2022

Senate Bill 970, currently pending in the California State Legislature, would move the March 2022 statewide primary election to June 2022. That would require San Dimas to move its March 2022 City Council election to June 2022. (Elections Code 14052.) The bill has already passed the State Senate on a 39-0 vote, and will likely pass the Assembly soon. The bill is proposed to give jurisdictions more time to re-district before the 2022 primary election, since the 2020 Census results will very likely be delayed from March 31, 2021 to July 31, 2021 due to COVID-19.

If the City Council executes the settlement agreement and Senate Bill 970 passes (which is very likely), San Dimas will have between August 1, 2021 and December 9, 2021 to conduct the four public hearings and consider adopting a districts map for the June 2022 election. (December 9, 2021 is when the County Clerk would need the map for the June 2022 election.)

If the City Council executes the settlement agreement and Senate Bill 970 does not pass (which is very unlikely), San Dimas will have a much more compacted schedule – between August 1, 2021 and September 9, 2021 to conduct the public hearings and adopt a map for the March 2022 election.

The Santa Monica Litigation and Pending Appeal to the California Supreme Court

Recently, on July 9, 2020, the California Court of Appeal issued its opinion in the lawsuit Mr. Shenkman filed against the City of Santa Monica to challenge that city’s at-large voting system (Pico Neighborhood Assoc. v. City of Santa Monica). After the trial court ruled for Mr. Shenkman and he applied for a $22 million attorney fees award, the Court of Appeal reversed. The Court of Appeal held Santa Monica’s at-large voting system does not violate the CVRA.

The Court of Appeal in the Santa Monica case reasoned that in order to win a CVRA lawsuit, a plaintiff must demonstrate that transitioning to districts is likely to make a difference in electoral results for the protected class. No other Court of Appeal has ever interpreted the CVRA that way. Because the most heavily Latino district possible to draw in Santa Monica is 30% Latino, the Court held transitioning to districts would not be likely to make a difference in electoral results for Latinos, and thus the at-large election system in Santa Monica does not violate the CVRA.

Mr. Shenkman filed a petition for review in the California Supreme Court on August 18, 2020, which is currently pending. The Supreme Court is scheduled to decide whether to take the appeal by mid-November 2020 and, if so, is likely to decide the appeal within one to two years.

It is unknown at this time whether the Santa Monica Court of Appeal opinion will be upheld by the Supreme Court and remain the law. Even if it is upheld and remains the law, it is still not abundantly clear that San Dimas would prevail in a CVRA lawsuit. Based on 2010 Census data, it appears the most heavily Latino district possible to draw in San Dimas is about 40% Latino – significantly higher than the 30% in Santa Monica. Based on that, even if the Supreme Court upholds the Santa Monica Court of Appeal opinion, San Dimas would need to rely on the argument

Item 6a Page 5

that creating a 40% Latino district is not likely to make a difference in electoral results for Latinos. Furthermore, currently it is unknown how the 2020 Census results will change that percentage number.

Should Mr. Shenkman prevail in a CVRA lawsuit against San Dimas, Mr. Shenkman would be entitled to recover his attorney fees from the City, likely in the millions of dollars, and the City would additionally pay its own attorney fees incurred in defending the lawsuit.

CITY COUNCIL’S OPTIONS

Option A – Approve the settlement agreement and adopt the resolution declaring intention to transition to district elections.

- This option allows the City to delay the process for transitioning to districts to the second half of 2021 after the 2020 Census results are released, which allows the City Council to evaluate those results before making its final decision and avoids the need to adopt a map that will never be used.

- This option allows the City Council to eliminate, with certainty, any risk of paying Mr. Shenkman and his client more than $30,000.

- The resolution of intent is not binding. Even after adopting it, the City Council can decide later not to transition to districts, but that would remove the $30,000 cap on payments to Mr. Shenkman.

Option B – Do not approve the settlement agreement and do not adopt the resolution of intent.

- This option would avoid paying Mr. Shenkman $30,000 under the settlement agreement, but would allow Mr. Shenkman to sue the City 45 days after the Governor terminates Executive Order N-48-20, which could be any day. If Mr. Shenkman prevails, there would be no cap on his attorney fees award, which would likely be in the millions of dollars. The City would also need to cover its own attorney fees.

- This option would leave open the possibility that the Governor may not terminate Executive Order N-48-20 until mid-2021, which would extend the “safe harbor” period until then, and thus the City could postpone its districts decision to after the 2020 Census results are released anyway without having to enter into the settlement agreement and without having to pay $30,000 up front to Mr. Shenkman. However, this would risk the Governor terminating the Order any day before the census results are released, and it is unlikely the Order will last for nearly another year until then. Additionally, this strategy would rely on the legal validity of the Governor’s Executive Order. Mr. Shenkman has implied that if San Dimas does not enter the settlement agreement, he may sue before the Executive Order is terminated and argue the Executive Order is invalid because action of the State Legislature is necessary to pause the district transition “safe harbor” timelines.

Item 6a Page 6

RECOMMENDATION The City Attorney recommends the City Council choose Option A:

1. Approve the Conditional Settlement and Release Agreement; and 2. Adopt Resolution 2020-50 Declaring Intention to Transition From At-Large To District-

Based City Council Elections.

The pending Santa Monica case does not change the City Attorney’s recommendation. Because it is uncertain whether the Supreme Court will affirm the Santa Monica Court of Appeal opinion, and because it is unknown at this time how the 2020 Census results might affect San Dimas’ ability to defend a CVRA lawsuit even if the Supreme Court affirms the Santa Monica Court of Appeal opinion, the City Attorney recommends executing the settlement agreement to consider transitioning to districts in the second half of 2021.

The settlement agreement will allow the City Council to evaluate the 2020 Census results and the state of CVRA law in late 2021 before it considers an ordinance to transition to districts. If the Supreme Court rules before San Dimas transitions to districts and makes it clear that San Dimas would prevail in a CVRA lawsuit, the City Council can then choose not to transition to districts. If San Dimas has already transitioned to districts by the time the Supreme Court makes it clear that San Dimas would prevail in a CVRA lawsuit, the City Council can transition back to an at-large election system at any time in the future. If the Supreme Court overturns the Santa Monica opinion and makes it clear San Dimas would lose a CVRA lawsuit, San Dimas will have avoided paying likely millions of dollars in attorney fees to Mr. Shenkman by entering into the settlement agreement. The only downside is a $30,000 payment to Mr. Shenkman, but it allows the Council to avoid the risk of paying a multi-million dollar attorney fee award, and it is the same amount that would be paid to Mr. Shenkman anyway if the City Council decided to transition to districts within the “safe harbor” period without a settlement agreement. Respectfully submitted,

Jeff Malawy City Attorney Attachment A: Letter from Kevin Shenkman, Attorney for Southwest Voter Registration Education Project, Alleging California Voting Rights Act Violation Attachment B: Conditional Settlement and Release Agreement Attachment C: Resolution 2020-50 - Declaring Intention to Transition From At-Large To District-Based City Council Elections

Item 6a Page 7

VIA CERTIFIED MAIL

March 19, 2020

Curtis Manis, Mayor Debra Black, City Clerk City of San Dimas 245 East Bonita A venue San Dimas, CA 91773

Re: Violation of California Voting Rights Act

28905 Wight Road Malibu, California 90265

(3 I 0) 457-0970

kshcnknlilll(ivshcnkmanhughcs.com

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n MAR 2 3 2020

CITY OF SAN DIMAS ADMINISTRATION

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I write on behalf of our client, Southwest Voter Registration Education Project and its members residing in San Dimas. The City of San Dimas ("San Dimas" or "City") relies upon an at-large election system for electing candidates to its City Council. Moreover, voting within the City is racially polarized, resulting in minority vote dilution, and therefore San Dimas' at-large elections violate the California Voting Rights Act of 2001 ("CVRA").

The CVRA disfavors the use of so-called "at-large" voting - an election method that permits voters of an entire jurisdiction to elect candidates to each open seat. See generally Sanchez v. City of Modesto (2006) 145 Cal.App.4111 660, 667 ("Sanchez").

For example, if the U.S. Congress were elected through a nationwide at-large election, rather than through typical single-member districts, each voter could cast up to 435 votes and vote for any candidate in the country, not just the candidates in the voter's district, and the 435 candidates receiving the most nationwide votes would be elected. At-large elections thus allow a bare majority of voters to control every seat, not just the seats in a particular district or a proportional majority of seats.

Voting rights advocates have targeted "at-large" election schemes for decades, because they often result in "vote dilution,'' or the impairment of minority groups' ability to elect their preferred candidates or influence the outcome of elections, which occurs when the electorate votes in a racially polarized manner. See Thornburg v.

Gingles, 478 U.S. 30, 46 (1986) ("Gingles"). The U.S. Supreme Court "has long recognized that multi-member districts and at-large voting schemes may operate to minimize or cancel out the voting strength" of minorities. Id. at 4 7; see also id. at 48, fn. 14 ( at-large elections may also cause elected officials to "ignore [minority] interests without fear of political consequences"), citing Rogers v. Lodge, 458 U.S.

Attachment A Page 1

March 19, 2020 Page 2 of 4

613, 623 (1982); White v. Register, 412 U.S. 755, 769 (1973). "[T]he majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters." Gingles, at 47. When racially polarized voting occurs, dividing the political unit into single-member districts, or some other appropriate remedy, may facilitate a minority group's ability to elect its preferred representatives. Rogers, at 616.

Section 2 of the federal Voting Rights Act ("FVRA"), 42 U.S.C. § 1973, which Congress enacted in 1965 and amended in 1982, targets, among other things, at-large election schemes. Gingles at 37; see also Boyd & Markman, The 1982 Amendments to the Voting Rights Act: A Legislative History (1983) 40 Wash. & Lee L. Rev. 1347, 1402. Although enforcement of the FVRA was successful in many states, California was an exception. By enacting the CVRA, "[t]he Legislature intended to expand protections against vote dilution over those provided by the federal Voting Rights Act of 1965." Jauregui v. City of Palmdale (2014) 226 Cal. App. 4th 781, 808. Thus, while the CVRA is similar to the FVRA in several respects, it is also different in several key respects, as the Legislature sought to remedy what it considered "restrictive interpretations given to the federal act." Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976 (2001-2002 Reg. Sess.) as amended Apr. 9, 2002, p. 2.

The California Legislature dispensed with the requirement in Gingles that a minority group demonstrate that it is sufficiently large and geographically compact to constitute a "majority-minority district." Sanchez, at 669. Rather, the CVRA requires only that a plaintiff show the exislcnce of racially polarized voting to establish that an at-large method of election violates the CVRA, not the desirability of any particular remedy. See Cal. Elec. Code § 14028 ("A violation of Section 14027 is established if it is shown that racially polarized voting occurs ... ") ( emphasis added); also see Assem. Com. on Judiciary, Analysis of Sen. Bill No. 976 (2001�2002 Reg. Sess.) as amended Apr. 9, 2002, p. 3 ("Thus, this bill puts the voting rights horse (the discrimination issue) back where it sensibly belongs in front of the cart (what type of remedy is appropriate once racially polarized voting has been shown).")

To establish a violation of the CVRA, a plaintiff must generally show that "racially polarized voting occurs in elections for members of the governing body of the political subdivision or in elections incorporating other electoral choices by the voters of the political subdivision." Elec. Code § 14028(a). The CVRA specifies the elections that are most probative: "elections in which at least one candidate is a member of a protected class or elections involving ballot measures, or other electoral choices that affect the rights and privileges of members of a protected class." Elec. Code§ !4028(a). The CVRA also makes clear that "[e)lections conducted prior to the filing of an action ... are more probative to establish the existence of racially polarized voting than elections conducted after the filing of the action." Id.

Attachment A Page 2


Factors other than "racially polarized voting" that are required to make out a claim under the FVRA - under the "totality of the circumstances" test - "are probative, but not necessary factors to establish a violation of' the CVRA. Elec. Code§ 14028(e). These "other factors" include "the history of discrimination, the use of electoral devices or other voting practices or procedures that may enhance the dilutive effects of at-large elections, denial of access to those processes determining which groups of candidates will receive financial or other support in a given election, the extent to which members of a protected class bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process, and the use of overt or subtle racial appeals in political campaigns," Id.

The City of San Dimas' at-large system dilutes the ability of Latinos (a "protected class")-to elect candidates of their choice or otherwise influence the outcome of the City's council elections.

As of the 2010 Census, San Dimas had a population of 33,371, with Latinos comprising approximately 31.44% of the City's population. However, Latino representation on the San Dimas City Council has been non-existent. The contrast between the significant Latino proportion of the electorate and the complete absence of Latinos to be elected to the San Dimas City Council is outwardly disturbing and fundamentally hostile towards participation from members of this protected class.

In light of the City's lack of elected Latino leadership, it is no wonder why Latino residents do not emerge as candidates, feel marginalized, and have historically been excluded from meaningful participation in the City's governance. During the City's history, there have only been a few Latinos to emerge as candidates for the San Dimas City Council. The off-cycle timing of San Dimas' council elections likely contributed to this dearth of Latino candidates. Opponents of fair, district-based elections may attempt to attribute the glaring lack of candidates within protected classes to a lack of interest from their respective communities within the City. On the contrary, the virtual absence of protected class candidates to seek election to the San Dimas City Council reveals vote dilution. See Westwego Citizens jiJr Better Government v. City of Westwego, 872 F. 2d 1201, 1208-1209, n. 9 (5th Cir. 1989).

The City of San Dimas' election history is additionally illustrative. In 2017, for example, Emma Maria Ramirez emerged as a candidate for a seat on the City's council. Notwithstanding the fact that Ms. Ramirez received significant support from the City's Latino community, Ms. Ramirez lost that election. More recently, in March 2020, even with the elections moved to coincide with the statewide primary election,

Attachment A Page 3


Latino candidates preferred by Latino electorate still fared no better - there were four Latino candidates for City Council: Emma Maria Ramirez, David Estrada, Nichole Gonzales, and Gil Gonzalez, and all of them lost while the only two non-Latino candidates won. These elections evidence vote dilution which is directly attributable to the City's unlawful at-large election system.

As you may be aware, in 2012, we sued the City of Palmdale for violating the CVRA. After an eight-day trial, we prevailed. After spending millions of dollars, a districtbased remedy was ultimately imposed upon the Palmdale City Council, with districts that combine all inc um bents into one of the four districts.

More recently, after a 7-week trial, we also prevailed against the City of Santa Monica, after that city needlessly spent millions of dollars defending its illegal election system -- far in excess of what was spent in the Palmdale litigation - taxpayer dollars which could have been more appropriately spent on indispensable municipal services and critical infrastructure improvements. Just prior to the trial in that case, counsel for the City of Santa Monica - Kahn Scolnick, a partner at Gibson Dunn & Crutcher LLP proclaimed that, "the reality is that if Santa Monica fails the CVRA test, then no city could pass, because Santa Monica is doing really well in terms of full representation and success of minority candidates." ("In Rare California Voting Rights Trial, Gibson Dunn Steps Up for Santa Monica", Law.com, August 1, 2018). Notwithstanding Mr. Scolnick's prediction, Plaintiffs succeeded in proving that Santa Monica's election system was in violation of the CVRA and the Equal Protection Clause of the California Constitution.

Given the historical lack of representation of those from this protected class on the San Dimas City Council in the context of racially polarized elections, we urge the City of San Dimas to voluntarily change its at-large system of electing city council members. Otherwise, on behalf of residents within the jurisdiction, we will be forced to seek judicial relief. Please advise us no later than May 8, 2020 as to whether you would like to discuss a voluntary chatige to your current at-large system.

We look forward to your response.

Very truly yours,

Kevin l. Shenkman

Attachment A Page 4

CONDITIONAL SETTLEMENT AGREEMENT AND RELEASE

This CONDI11ONAL SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is entered into by and between the CITY OF SAN DlMAS, a general law city and municipal corporation ("City"), and Southwest Voter Registration Education Project, a non-profit corporation organized w1der the laws of the State of Texas and registered to conduct operations within the State of California, on behalf of itself and it� network of registered voters ("Prospective Plaintiffs"). TI1e above parties are refen-ed to herein individually as "Party'' and collectively as "Parties."

REClTALS

A. Since incorporation in 1960, the San Dimas City Council has been elected throughthe at-large election system in which each voter may cast one vote for each Councilseat that is up for election.

B. On March 23. 2020, the City received a notice from Prospective Plainliffs("Notice··) assetting that the City's at-large system of electing City Councilmembers violates the California Voting Rights Act of2001 ("Act") and threateningsuit unless the City voluntarily changes its at-large system. The Notice suggeststransitioning to a district-based electoral system, an election method in which acandidate must reside within an election district that is a divisible part of the cityand is elected only by voters residing within that election district, would cure thealleged violation of the Act.

C. The City Council denies that the City's at-large electoral system violates the Act.Nevertheless, in recognition that litigation involves significant costs andunce1tainty, the City Council desires to enter into this Agreement.

D. In order for the City Council to adopt an ordinance transitioning to a district-basedelection system, the City Council must first conduct a series of public hearings asdescribed in Elections Code section 10010. On March 20, 2020 and April 9, 2020,the Governor of California issued executive orders stating that the timeframes setforth in Elections Code section 10010, subdivisions (a) and (e). are suspended untilfurther notice, in order to protect public health and safety during the period whenthe Public Health Officer and other public health officials have determined that it isnecessary to engage in physical distancing to minimize the spread of COV!D-19.

E. Any city with a district-based election system must "redistrict" (that is, adopt a newdistricts map) after eveiy decennial federal census. based on the data resulting fromthat new census. (Elections Code 21601.) The United States Census Bureau iscurrently conducting the 2020 census. Under current law, a city with a district-basedelection system must adopt a new districts map based on the 2020 census data noearlier than August 1, 2021 but not later than 151 days before the <.:ity's next regularelection occurring after March 1. 2022. (Elections Code 21602.)

F. The next regular election for the San Dimas City Council is currently scheduled totake place on March 8, 2022. Therefore, if San Dimas were to conduct publichearings, solicit public input, select a districts map, and transition to district

011110026/643961.7 Page I of 8 005028 00268

26211269.1 Attachment B Page 1

elections prior to August 1, 2021, the districts map selected would never be used, as the City would need to redistrict between August 1, 2021 and October 8, 2021 using new 2020 census data.

G. The results of the 2020 Census for redistricting purposes are cLmently scheduled tobe released to the states by April 1, 2021. However. the Census Bureau hasrequested Congressional approval to delay the release to July 31, 2021, due to theCOVID-19 emergency.

H. For the above reasons. the Parties desire to delay the potential adoption of anordinance transitioning San Dimas to district elections until the map adopted by thatordinance would be used in the next regular election for the San Dimas City Council.

I. The Parties mutually desire that the districts adopted following the 2020 federaldecennial census, as well as the sequence of elections in transitioning to a districtelected City Council, are in ftntherance of the remedial purposes of the Act.

J. The Parties now wish conditionally to resolve and settle the Notice and all attendantand potential litigation arising therefrom.

NOW, THEREFORE, in consideration of the mutual covenants and agreements described below, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree:

1. Obligations of Patiies

A. On or before September 8, 2020. the City Council will consider approval of theresolution attached as Exhibit A to this Agreement ("Resolution"), which is aresolution of intent to institute a district-based election system for City Council seatsso that it is in place for the next regular San Dimas City Council election.

B. Provided the City Council adopts the Resolution, Prospective Plaintiffs shall notbring suit against the City prior to December 31, 2021, for any cause of actionrelated to the City's electoral system, including but not limited to suit allegingviolation of the Act suit seeking the implementation of district-based elections, orclaims related to or arising from the Notice.

C. Provided the City Council adopts the Resolution, within 30 days of such adoptionthe City will remit a payment of $30.000 (thirty thousand dollars) to ProspectivePlaintiffs as reimbursement of Prospective Plaintiffs' costs incurred for the workproduct to support the Notice in fulfillment of the requirement to reimburseprospective plaintiffs' reasonable costs pursuant to Elections Code section 1001 0(f).The check will be made payable to Prospective Plaintiffs' attorneys-of-record -Shenkman & Hughes P.C. Pursuant to Elections Code section 1001 0(f)( l ),Prospective Plaintiffs have made a demand for reimbursement and staff hassubstantiated that the documentation provided by Prospective Plaintiffs representsthe demography and legal costs incurred by Prospective Plaintiffs supporting theirNotice.

01171.0026/643961.7 Page 2 of 8 005028.00268


2. Condition Precedent

Prospective Plaintiffs acknowledge, understand, and agree that the City Council's passingof the Resolution is an express condition precedent to the consummation of thisAgreement and the covenants, conditions, and agreements contained herein. In the eventthat the Resolution is not approved as set forth in Section l . then this Agreement shall benull and void and shall be of no further force and effect. In such event. neither thisAgreement nor any of its terms or provisions shall be admissible in any action orproceeding initiated by Prospective Plaintiffs for any purpose.

Further, the Prospective Plaintiff.c; recognize and acknowledge that the City Council is under no obligation to pass the Resolution and that the City Council reserves its discretion and the full measure of its powers to evaluate the Resolution in accordance with applicable procedures, standards, and requirements. It is understood and agreed that this Agreement shall not be construed in any fashion as an advance determination and does not provide the Prospective Plaintiffs with any expectation as to the outcome of the City Council's decision on the Resolution. The City Council's lack of approval or inaction on the Resolution will not constitute a default of this Agreement, but instead will constitute a terminating event of this Agreement.

3. No Admission

If the City does not adopt an ordinance transitioning to distTict-based elections for CityCouncil seats by December 31, 202 L this Agreement shall not be construed as anadmission by the City that such failure to act is umeasonable or unlawful under theElections Code. Rather, in the event the City fails to adopt such an ordinance,Prospective Plaintiffs may file an action under the Act, and any other applicable Jaws,seeking to require the implementation of district-based elections for the City'sgoverning board.

4. Release

A. So long as the City adopts the Resolution and ordinance transitioning to districtelections for the City's next election (and all elections thereafter), the Parties herebyfully and finally waive, release, and permanently discharge each other (and theirrespective officers, employees, agents, representatives and attorneys) (the''Releasees"), from any and all past, present. or future matters, claims, demands.obligations, liens, actions or causes of action, suits in law or equity, or claims fordamages or injuries, whether known or mlknown, which they now own, hold orclaim to have or at any time heretofore have owned. held or claimed to have heldagainst each other by reason of any matter or thing alleged or referred to. or in anyway connected with. arising out ofor in any way relating to the Notice (collectively,the "Released Claims"). In connection with the release of the Released Claims, theParties waive any and all rights that they may have under the provisions of section1542 of the California Ci vi I Code, which states as follows:

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26211269 I Attachment B Page 3

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT

TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM

OR HER MUST HAVE MATERIALLY AFFECTED HIS OR

HER SETTLEMENT WITH THE DEBTOR.

In the event that any waiver of the p.rovisions of Section 1542 of the California Code provided for in this Agreement shall be judicially determined to be invalid, voidable or unenforceable, for any reason, such waiver to that extent shall be severable from the remaining provisions of this Agreement, and the invalidity. voidability or unenforceability of the waiver shall not affect the validity, effect, enforceability or interpretation of the remaining provisions of this Agreement.

B. The Parties understand and acknowledge that the foregoing release extends to anyclaims or damages, without limitation, arising out of the Released Claims that mayexist on the date of the execution of this Agreement, but which the Parties do not knowto exist, which. if known, would have materially affected their decision to execute thisAgreement, regardless of whether their lack of knowledge is a result of ignorance,oversight. error. negligence or any other cause.

C. Each Party acknowledges and agrees that this Agreement is a compromise andsettlement of their disputes and differences, and is not an admission of liability orwrongdoing by any Party.

D. So long as the City adopts the Resolution and ordinance transitioning to districtelections for the City's next election (and all elections thereafter) as contemplated bythis Agreement, and except as provided in Section 1.C. of this Agreement, each of theParties waives any and all claims for the recovery of any costs, expenses, or fees,including attorney fees, associated with the matters and claims released in thisAgreement.

5. Representations and Warranties

A. Prospective Plaintiffs hereby represent and warrant to the City, as of the EffectiveDate, as follows:

I.

ii.

They have not heretofore assigned or transferred, or purported to assign or transfer, to any party not named herein any Released Claim, or any part or p01tion thereof.

To the best of their knowledge, there are no legal actions. suits or similar proceedings pending and served. or threatened in writing against the Prospective Plaintiffs that would adversely affect their ability to consummate the transactions contemplated in this Agreement. To the best of their knowledge, Prospective Plaintiffs are not aware of any existing claims nor of any facts that might give rise to any claims of any type or nature

01171 0026/643961 7

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Page 4 of'8

26211269.l Attachment B Page 4

6.

against the District, whether asserted or not, that have not been fully released and discharged by the release set forth in this Agreement.

111. Prospective Plaintiffs have freely entered into this Agreement and are notentering into this Agreement because of any duress, fear, or undue influence�this Agreement is being entered into in good faith.

1v. Prospective Plaintiffs have made such investigation of the facts pertaining to this Agreement as they deem necessary.

v. Prospective Plaintiffs have, prior to the execution of this Agreement,obtained the advice of independent legal counsel of their own selectionregarding the substance of this Agreement and the claims released herein.

B. In executing this Agreement, Prospective Plaintiffs acknowledge, represent, andwarrant to the City that they have not relied upon any statement or representation ofany City officer, agent, employee, representative, or attorney regarding any facts notexpressly set forth within this Agreement. In entering into this Agreement,Prospective Plaintiffs assume the risk of any misrepresentations, concealment or mistake, whether or not they should subsequently discover or asse1t for any reasonthat any fac1 relied upon by them in entering into this Agreement was untrue, or thatany fact was concealed from them, or that their understanding of the facts or of thelaw was incorrect or incomplete.

C. The representations and warranties of each of the Parties set forth in this Sectionand elsewhere in this Agreement will survive the execution and delivery of thisAgreement and are a material part of the consideration to the District in enteringinto this Agreement.

Interpretation

A. The Patties have cooperated in the drafting at1d preparation of this Agreement and,in any construction or interpretation to be made of this Agreement, the same shallnot be construed against any Party. This Agreement is the product of bargained forand ann's length negotiations between the Parties and tl1eir counsel. This Agreementis the joint product of the Parties.

B. This Agreement is an integrated contract and sets forth the entire agreement betweenthe Parties with respect to the subject matter contained herein. All agreements,covenants, representations and warranties. express or implied, oral or written. of theParties with regai·d to such subject matter are contained in this Agreement. No otheragreements, covenants, representations or warranties, express or implied, oral orwritten. have been made or relied on by either Party.

C. This Agreement may not be changed, modified or amended except by writteninstrument specifying that it amends sucb agreement and signed by both Parties. Nowaiver of any provision of this Agreement shall be deemed or shall constitute awaiver of any other provision whether or 1101 similar, nor shall any waiver be

0111100261643961.7 Page 5 of 8 005028.00268

26211269 l Attachment B Page 5

7.

deemed a continuing waiver; and no waiver shal I be implied from delay or be binding unless executed in writing by the party making the waiver.

D. All of the covenants, releases and other provisions herein contained in favor of thepersons and entities released are made for the express benefit of each and all of thesaid persons and entities, each of which has the right to enforce such provisions.

E. This Agreement shall be binding upon and inure to the benefit of each of the Parties,and their respective representatives, officers, employees, agents, heirs, devisees,successors and assigns.

Fm1her Cooperation

Each Party shall perfonn any fw1her acts and execute and deliver any fwther documents that may be reasonably necessary or appropriate to carry out the provisions and intent of this Agreement. Except as expressly stated otherwise in this Agreement. actions required of the Parties or any of them will not be unreasonably withheld or delayed, and approval or disapproval will be given within the time set forth in this Agreement. or, if no time is given, within a reasonable time. Time will be of the essence of actions required of any of the Parties.

8. No Third Party Beneficiaries

9.

Nothing in this Agreement is intended to benefit any third party or create a third party beneficiary. This Agreement will not be enforceable by any person not a Pa11y to this Agreement.

Enforced Delay (Force Majeure)

A. Performance by either Party shall not be deemed to be in default where delays ordefaults are due to war, insmrection, strikes, walkouts, riots, floods, earthquakes,fires. acts of terrorism, epidemic, quarantine, casualties, acts of God, or other similarcircumstances beyond the reasonable control of the Parties and which substantiallyinterferes with the ability of a Party to perform its obligations under this Agreement.

B. An extension of time for any sucb cause (a "Force Majeure Delay") shall be for theperiod of the enforced delay and shall commence to run from the time of thecommencement of the cause, if notice by the Party claiming such extension is sentto the other Party within thirty (30) days of knowledge of the conunencement of thecause. Notwithstanding the foregoing, none of the foregoing events shall constitutea Force Majeure Delay tmless and until the Party claiming such delay andinterference delivers to the other Party written notice describing the event, its cause,when and how such Party obtained knowledge, the date the event commenced. andthe estimated delay resulting therefrom. Either Party claiming a Force MajeureDelay shall deliver such written notice within thirty (30) days after it obtains actualknowledge of the event. The time for performance wi 11 be extended for such periodof time as the cause of such delay exists but in any event not longer than for suchperiod of time.

01111.0026/64396l.7 Page6 of8 005028 00268


10. Governing Law; Venue

I I .

This Agreement shall be governed by, and construed in accordance with. the laws of theState of California, without regard to any otherwise applicable principles of conflicts oflaws. Any action arising out of this Agreement must be commenced in the state comtsof the State of California, County of Los Angeles, and each party hereby consents to thejurisdiction of the above couits in any such action and to venue in the State of California,County of Los Angeles, and agrees that such courts have specific personal jurisdictionover each of them.

Counterpa1ts

This Agreement may be executed in any number of counterparts. each of which when soexecuted shall be deemed to be an original, and such cow1terparts together shallconstitute one and the same instrument.

12. Effectiveness

This Agreement shall become effective immediately following execution by both ofthe Parties ("Effective Date").

IN WITNESS WHEREOF, the Pru.ties hereby execute this Agreement.

PROSPECTIVE PLAINTIFFS:

By: --------------Lydia Camarillo, President Southwest Voter Registration Education Project

Date: 7/15/2020

CITY:

By: -------------

Date:

Emmett Badar Mayor

ATTEST:

By: ---------------

Debra Black Assistant City Clerk

01171.0026/64396l.7

(105028 00268

Page 7 of8

�6211269.1 Attachment B Page 7

APPROVED AS TO FORM:

Attorneys for Prospective Plaintiff:

Shenkman & Hughes PC

Attorneys for City:

Aleshire & Wynder, LLP

Date: -----------

01171.0026/64396l.7

005028 00268

26211269 I

By: __ ;eP ___ _ Kevin I. Shenkman

By: ______________ _ Jeff Malawy, City Attorney

Page 8 of 8

Attachment B Page 8

EXHIBIT “A”

Attachment B Page 9

01171.0003/638755.4

RESOLUTION NO. XXXX

A Resolution of the City Council of the City of San Dimas, California, Declaring Its Intention To Transition From At-Large

To District-Based Elections Pursuant to Elections Code Section 10010

WHEREAS, the members of the City Council of the City of San Dimas (City) are currently elected in “at-large” elections, in which each City Council member is elected by the registered voters of the entire City; and

WHEREAS, the City currently directly elects its Mayor every two years; and

WHEREAS, Government Code section 34886 gives the City the authority to change via ordinance from “at-large” to “district-based” elections, where each member of the City Council is elected only by the voters in the district in which the candidate for City Council resides; and

WHEREAS, on March 23, 2020, the City Clerk received a notice (“Notice”) from attorney Kevin Shenkman, on behalf of his client the Southwest Voter Registration Education Project (“Prospective Plaintiffs”), alleging the City’s at-large system of elections violates the California Voting Rights Act (CVRA), suggesting a transition to a district-based system of elections would remedy the violation, and threatening to sue the City if the City does not voluntarily change its at-large election system; and

WHEREAS, the City denies its election system violates the CVRA or any other provision of law and asserts the City’s election system is legal in all respects and further denies any wrongdoing whatsoever in connection with the manner in which it has conducted its City Council elections; and

WHEREAS, despite the foregoing, the City Council has concluded it is in the public interest to begin the process of transitioning from at-large to district-based elections due to the uncertainty of litigation to defend against a CVRA lawsuit and the potentially extraordinary cost of such a lawsuit, even if the City were to prevail; and

WHEREAS, the CVRA allows for Prospective Plaintiffs to file a lawsuit against the City if the City does not adopt a resolution of intent to institute district based elections within 45 days of the Notice (“45-day period”) (Elections Code section 10010); and

WHEREAS, on March 20, 2020 and April 9, 2020, the California Governor issued executive orders that “paused” the 45-day period until further notice; and

WHEREAS, Prospective Plaintiffs have offered a settlement agreement whereby the City would not be required to consider an ordinance instituting district elections immediately, but rather at any time that would allow district elections to be in place for the next regular San Dimas City Council election, in order to allow 2020 census data to

Attachment B Page 10

be taken into account in drawing district boundaries. If the City adopted a district map prior to release of the 2020 census data, the map would never be used for any election because the City would need to re-district based on the new 2020 census data before the next City Council election (Elections Code 21600 et seq); and

WHEREAS, pursuant to Elections Code subdivision 10010(f), if a City adopts an ordinance establishing a district-based system of elections, then potential plaintiffs who threatened litigation prior to the City passing a resolution of intention may seek attorney’s fees and other costs from the City for preparing the notice pursuant to Elections Code subdivision 10010(e) but those costs are capped at $30,000, and payment in the settlement agreement is accordingly limited to that amount; and

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN DIMAS, STATE OF CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:

SECTION 1. The above recitals are true and correct and incorporated herein by this reference.

SECTION 2. The City Council declares its intent to transition to district elections. The City Council will consider adoption of an ordinance to institute a district-based election system, and the City Council will consider adoption of that ordinance no later than the last date possible to allow district elections to be in place for the next regular San Dimas City Council election that takes place after the effective date of this resolution.

SECTION 3. Prior to considering an ordinance to establish district boundaries for a district-based electoral system, the City will follow the requirements pursuant to Elections Code section 10010, as modified by any applicable executive orders and/or amendments, to solicit public input in the distrct map drawing process.

SECTION 4. This Resolution is effective on the day of its adoption.

The foregoing Resolution was proposed by Councilmember __________________, seconded by Councilmember __________________, and was passed and adopted by the Council of the City of San Dimas at its duly noticed regular meeting on ___________, 2020, by the following vote:

AYES: Councilmember(s):

NOES: Councilmember(s):

ABSENT: Councilmember(s):

Emmett Badar, Mayor


City of San Dimas

ATTEST:

Debra Black, City Clerk City of San Dimas


RESOLUTION 2020-50

A Resolution of the City Council of the City of San Dimas, California, Declaring Its Intention To Transition From At-Large

To District-Based Elections Pursuant to Elections Code Section 10010

WHEREAS, the members of the City Council of the City of San Dimas (City) are currently elected in “at-large” elections, in which each City Council member is elected by the registered voters of the entire City; and

WHEREAS, the City currently directly elects its Mayor every two years; and

WHEREAS, Government Code section 34886 gives the City the authority to change via ordinance from “at-large” to “district-based” elections, where each member of the City Council is elected only by the voters in the district in which the candidate for City Council resides; and

WHEREAS, on March 23, 2020, the City Clerk received a notice (“Notice”) from attorney Kevin Shenkman, on behalf of his client the Southwest Voter Registration Education Project (“Prospective Plaintiffs”), alleging the City’s at-large system of elections violates the California Voting Rights Act (CVRA), suggesting a transition to a district-based system of elections would remedy the violation, and threatening to sue the City if the City does not voluntarily change its at-large election system; and

WHEREAS, the City denies its election system violates the CVRA or any other provision of law and asserts the City’s election system is legal in all respects and further denies any wrongdoing whatsoever in connection with the manner in which it has conducted its City Council elections; and

WHEREAS, despite the foregoing, the City Council has concluded it is in the public interest to begin the process of transitioning from at-large to district-based elections due to the uncertainty of litigation to defend against a CVRA lawsuit and the potentially extraordinary cost of such a lawsuit, even if the City were to prevail; and

WHEREAS, the CVRA allows for Prospective Plaintiffs to file a lawsuit against the City if the City does not adopt a resolution of intent to institute district based elections within 45 days of the Notice (“45-day period”) (Elections Code section 10010); and

WHEREAS, on March 20, 2020 and April 9, 2020, the California Governor issued executive orders that “paused” the 45-day period until further notice; and

WHEREAS, Prospective Plaintiffs have offered a settlement agreement whereby the City would not be required to consider an ordinance instituting district elections immediately, but rather at any time that would allow district elections to be in place for the next regular San Dimas City Council election, in order to allow 2020 census data to be taken into account in drawing district boundaries. If the City adopted a district map prior to release of the 2020 census data, the map

Attachment C Page 1

would never be used for any election because the City would need to re-district based on the new 2020 census data before the next City Council election (Elections Code 21600 et seq); and

WHEREAS, pursuant to Elections Code subdivision 10010(f), if a City adopts an

ordinance establishing a district-based system of elections, then potential plaintiffs who threatened litigation prior to the City passing a resolution of intention may seek attorney’s fees and other costs from the City for preparing the notice pursuant to Elections Code subdivision 10010(e) but those costs are capped at $30,000, and payment in the settlement agreement is accordingly limited to that amount; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN DIMAS, STATE OF CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The above recitals are true and correct and incorporated herein by this reference. SECTION 2. The City Council declares its intent to transition to district elections. The City Council will consider adoption of an ordinance to institute a district-based election system, and the City Council will consider adoption of that ordinance no later than the last date possible to allow district elections to be in place for the next regular San Dimas City Council election that takes place after the effective date of this resolution. SECTION 3. Prior to considering an ordinance to establish district boundaries for a district-based electoral system, the City will follow the requirements pursuant to Elections Code section 10010, as modified by any applicable executive orders and/or amendments, to solicit public input in the distrct map drawing process. SECTION 4. This Resolution is effective on the day of its adoption. The foregoing Resolution was proposed by Councilmember __________________, seconded by Councilmember __________________, and was passed and adopted by the Council of the City of San Dimas at its duly noticed regular meeting on ___________, 2020, by the following vote:

_____________________________ Emmett G. Badar, Mayor

ATTEST: _________________________________ Debra Black, City Clerk

Attachment C Page 2

I HEREBY CERTIFY that Resolution 2020-49 was approved by vote of the City

Council of the City of San Dimas at its regular meeting of August 25th, 2020 by the following vote:


Debra Black, City Clerk

Attachment C Page 3