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2020.07.21 Agenda Packet - Regular Meeting
City Council Agenda Tuesday, July 21, 2020 Study Session 5:30 p.m. Regular Meeting 6:30 p.m. PUBLIC ADVISORY: Consistent with the Governor’s latest Executive Order to Stay at Home, avoid gatherings and maintain social distancing, this meeting will be conducted telephonically and Members of the City Council and staff will be participating via Teleconference. There will be no physical meeting location. How to Observe the Meeting: To maximize public safety while still maintaining transparency and public access, members of the public can observe the meeting by calling +1 (415) 655-0052, Attendee Access Code: 737- 685-358 or by visiting https://attendee.gotowebinar.com/register/346692917217287952. How to Submit Public Comment: Members of the public may provide public comment by sending written comments to the City Clerk by email at cityclerk@DiamondBarCA.gov by 5:30 p.m. on the day of the meeting. Please indicate in the Subject Line “FOR PUBLIC COMMENT.” Written comments will be distributed to the Council Members and noted for the record at the meeting. Alternatively, public comment may be submitted by calling +1 (415) 655-0052, Attendee Access Code: 737-685-358 and dialing *9 during the public comment period and/or by visiting https://attendee.gotowebinar.com/register/346692917217287952. Members of the public will be called upon one at a time during the Public Comment portion of the agenda, and will be asked to state their name and agenda item they wish to comment on. Speakers are limited to five minutes per agenda item, unless the Mayor determines otherwise. American Disability Act Accommodations: Pursuant to the Executive Order, and in compliance with the Americans with Disabilities Act, if you need special assistance to participate in the Council Meeting, please contact the City Clerk’s Office (909) 839-7010 within 72 hours of the meeting. City Council video recordings with transcription will be available upon request the day following the Council Meeting. The City of Diamond Bar thanks you in advance for taking all precautions to prevent spreading the COVID-19 virus. STEVE TYE Mayor NANCY A. LYONS Mayor Pro Tem ANDREW CHOU Council Member RUTH M. LOW Council Member JENNIFER "FRED" MAHLKE Council Member City Manager Dan Fox • City Attorney David DeBerry • City Clerk Kristina Santana DIAMOND BAR CITY COUNCIL MEETING RULES Welcome to the meeting of the Diamond Bar City Council. Meetings are open to the public and are broadcast on Spectrum Cable Channel 3 and Frontier FiOS television Channel 47. You are invited to attend and participate. Copies of staff reports or other written documentation relating to agenda items are on file and available for public inspection by contacting the Office of the City Clerk. If requested, the agenda will be made available in an alternative format to a person with disability as required by Section 202 of the Americans with Disabilities Act of 1990. If you have questions regarding an agenda item, please contact the City Clerk at (909) 839-7010 during regular business hours. PUBLIC INPUT Members of the public may address the Council on any item of business on the agenda during the time the item is taken up by the Council. In addition, members of the public may, during the Public Comment period address the Council on any Consent Calendar item or any matter not on the agenda and within the Council’s subject matter jurisdiction. Any material to be submitted to the City Council at the meeting should be submitted through the City Clerk. Speakers are limited to five minutes per agenda item, unless the Mayor determines otherwise. The Mayor may adjust this time limit depending on the number of people wishing to speak, the complexity of the matter, the length of the agenda, the hour and any other relevant consideration. Speakers may address the Council only once on an agenda item, except during public hearings, when the applicant/appellant may be afforded a rebuttal. Public comments must be directed to the City Council. Behavior that disrupts the orderly conduct of the meeting may result in the speaker being removed from the meeting. INFORMATION RELATING TO AGENDAS AND ACTIONS OF THE COUNCIL Agendas for regular City Council meetings are available 72 hours prior to the meeting and are posted in the City’s regular posting locations, on DBTV Channel 3, Spectrum Cable Channel 3, Frontier FiOS television Channel 47 and on the City’s website at www.diamondbarca.gov. The City Council may take action on any item listed on the agenda. HELPFUL PHONE NUMBERS Copies of agendas, rules of the Council, Video of meetings: (909) 839-7010 Computer access to agendas: www.diamondbarca.gov General information: (909) 839-7000 Written materials distributed to the City Council within 72 hours of the City Council meeting are available for public inspection immediately upon distribution in the City Clerk’s Office at 21810 Copley Dr., Diamond Bar, California, during normal business hours. THIS MEETING IS BEING VIDEO RECORDED AND BY PARTICIPATING VIA TELECONFERENCE, YOU ARE GIVING YOUR PERMISSION TO BE TELEVISED. THIS MEETING WILL BE RE-BROADCAST EVERY SATURDAY AND SUNDAY AT 9:00 A.M. AND ALTERNATE TUESDAYS AT 8:00 P.M. AND IS ALSO AVAILABLE FOR LIVE VIEWING AT HTTPS://ATTENDEE.GOTOWEBINAR.COM/REGISTER/5226332118022266124 and ARCHIVED VIEWING ON THE CITY’S WEB SITE AT WWW.DIAMONDBARCA.GOV. CITY OF DIAMOND BAR CITY COUNCIL AGENDA July 21, 2020 STUDY SESSION: 5:30 p.m. PUBLIC COMMENTS VEHICLE MILES TRAVELED (VMT): CALIFORNIA'S NEW METRIC FOR EVALUATING TRAFFIC IMPACTS CALL TO ORDER: 6:30 p.m. PLEDGE OF ALLEGIANCE: Mayor ROLL CALL: Chou, Low, Mahlke, Mayor Pro Tem Lyons, Mayor Tye APPROVAL OF AGENDA: Mayor 1. CITY MANAGER REPORTS AND RECOMMENDATIONS: 2. PUBLIC COMMENTS: "Public Comments" is the time reserved on each regular meeting agenda to provide an opportunity for members of the public to directly address the Council on Consent Calendar items or other matters of interest not on the agenda that are within the subject matter jurisdiction of the Council. Although the City Council values your comments, pursuant to the Brown Act, members of the City Council or Staff may briefly respond to public comments if necessary, but no extended discussion and no action on such matters may take place. There is a five-minute maximum time limit when addressing the City Council. At this time, the teleconference moderator will ask callers one at a time to give their name and if JULY 21, 2020 PAGE 2 there is an agenda item number they wish to speak on before providing their comment. If you wish to speak on a public hearing item or council consideration item, you will then be called upon to speak at that point in the agenda. 3. CONSENT CALENDAR: All items listed on the Consent Calendar are considered by the City Council to be routine and will be acted on by a single motion unless a Council Member or member of the public request otherwise, in which case, the item will be removed for separate consideration. 3.1 CITY COUNCIL MINUTES OF THE JULY 7, 2020 MEETING. 3.1.a July 7, 2020 City Council Minutes Recommended Action: Approve the July 7, 2020 Regular City Council meeting minutes. Requested by: City Clerk 3.2 ESTABLISHMENT OF VEHICLE MILES TRAVELED THRESHOLDS OF SIGNIFICANCE RELATED TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. Recommended Action: Adopt Resolution No. 2020-30 establishing Vehicles Miles Traveled Thresholds of Significance for purposes of analyzing transportation impacts under the California Environmental Quality Act. Requested by: Community Development Department 3.3 SECOND AMENDMENT TO THE CONSULTING SERVICES AGREEMENT WITH SIMPSON ADVERTISING, INC. FOR SPECIALTY GRAPHIC DESIGN SERVICES THROUGH JUNE 30, 2021. Recommended Action: Approve, and authorize Mayor to sign, the Second Amendment to Consultant Services Agreement with Simpson Ad vertising through June 30, 2021. Requested by: City Manager 3.4 PURCHASE ORDER WITH SOUTHERN CALIFORNIA NEWSPAPER GROUP FOR PRINTING AND MAILING SERVICES FOR THE CITY NEWSLETTER, RECREATION BROCHURE AND CALENDAR AND SERVICES GUIDE THROUGH JUNE 30, 2021. Recommended Action: Approve, and authorize the City Manager to sign, a Purchase Order with JULY 21, 2020 PAGE 3 Southern California Newspaper Group (SCNG) in a not-to-exceed amount of $53,998.86. Requested by: City Manager 3.5 CONSULTING SERVICES AGREEMENT WITH KOA CORPORATION FOR PREPARATION OF LOCAL ROADWAY SAFETY PLAN. Recommended Action: Approve, and authorize the Mayor to sign, the Consulting Services Agreement with KOA Corporation in the amount not to exceed $79,870. Requested by: Public Works Department 3.6 MEASURE W SAFE, CLEAN WATER PROGRAM-MUNICIPAL PROGRAM TRANSFER AGREEMENT WITH THE LOS ANGELES COUNTY FLOOD CONTROL DISTRICT. Recommended Action: Approve, and authorize the City Manager to sign, the Safe, Clean Water Program-Municipal Program Transfer Agreement No. 2020MP22 with the Los Angeles County Flood Control District. Requested by: Public Works Department 4. PUBLIC HEARINGS: 4.1 ZONE CHANGE AND DEVELOPMENT REVIEW FOR NEW SINGLE FAMILY RESIDENCE LOCATED AT 1111 N. DIAMOND BAR BLVD. (PLANNING CASE NO. PL2015-253). Recommended Action: A. Open the public hearing to receive public testimony; B. Close the public hearing; C. Introduce for first reading by title only, waive full reading of Ordinance No. 01(2020) adopting Zone Change to change the existing zoning from Neighborhood Commercial (C-1) to Low Density Residential (RL), and schedule second reading and adoption at the August 4, 2020 City Council meeting; and D. Adopt Resolution No. 2020-31 approving Development Review based on the Findings of Fact, and subject to the Conditions of Approval contained therein. Requested by: Community Development Department JULY 21, 2020 PAGE 4 4.2 RESOLUTIONS LEVYING ASSESSMENTS ON LANDSCAPE ASSESSMENT DISTRICT NOS. 38, 39, AND 41 FOR FISCAL YEAR 2020-21. Recommended Action: Receive staff report, open the Public Hearing, receive testimony, close the Public Hearing, discuss and take the following actions: A. Adopt Resolution No. 2020-32 (LLAD No. 38) to levy and collect assessments for Landscape Assessment District No. 38 for Fiscal Year 2020-21; B. Adopt Resolution No. 2020-33 (LLAD No. 39) to levy and collect assessments for Landscape Assessment District No. 39 for Fiscal Year 2020-21; and C. Adopt Resolution No. 2020-34 (LLAD No. 41) to levy and collect assessments for Landscape Assessment District No. 41 for Fiscal Year 2020-21. Requested by: Public Works Department 5. COUNCIL CONSIDERATION: 5.1 RESOLUTIONS FOR THE SUBMISSION TO THE VOTERS A QUESTION RELATING TO TRANSACTIONS AND USE TAX AND SETTING PRIORITIES FOR FILING OF WRITTEN ARGUMENT REGARDING A CITY COUNCIL-INITIATED TRANSACTIONS AND USE TAX MEASURE AND DIRECTING THE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS. Recommended Action: A. Adopt Resolution No. 2020-35 for the submission to the voters a question relating to Transactions and Use Tax; and B. Adopt Resolution No. 2020-36 setting deadlines and priorities for filing written arguments regarding the City Council-initiated Transactions and Use Tax Measure and directing the City Attorney to prepare an impartial analysis. Requested by: City Manager 5.2 SUPPORT LETTERS REGARDING RESPONSIBLE USE OF FORCE POLICY REFORM. Recommended Action: Discuss the revised letter of support to Los Angeles County Sheriff Villanueva and provide direction as deemed appropriate. JULY 21, 2020 PAGE 5 Requested by: City Manager 6. COUNCIL SUB-COMMITTEE REPORTS AND MEETING ATTENDANCE REPORTS/COUNCIL MEMBER COMMENTS: 7. ADJOURNMENT: Agenda #: 1 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: STUDY SESSION | VEHICLE MILES TRAVELED (VMT): CALIFORNIA'S NEW METRIC FOR EVALUATING TRAFFIC IMPACTS STRATEGIC GOAL: Safe, Sustainable & Healthy Community INTRODUCTION AND PURPOSE: The California Environmental Quality Act (CEQA) has long held that a development project’s contribution to roadway congestion was an environmental impact, and mitigation measures were required to alleviate project-driven congestion. The metric used to quantify the impacts of congestion is “Level of Service,” or LOS. LOS methodologies estimate wait times at intersection, and grade the performance of intersections from A through F. If a development proposal had the potential to lo wer the letter grades at affected intersections, CEQA would grant jurisdictions the authority to require developers to mitigate such impacts through roadway improvements or contributions to capital improvement programs. The fundamental notion of LOS as an environmental metric began its downfall with the passage of the Global Warming Solutions Act of 2006 (AB 32). Among other things, AB 32 shifted the focus of traffic’s impact on the environment away from the amount of time a motorist was delayed at an intersection, and instead sought to reduce the greenhouse gas (GHG) emissions generated by automobiles in order to combat the impacts of climate change. On September 27, 2013, Governor Jerry Brown signed SB 743 into law, declaring that a development project’s contribution to roadway congestion would no longer be classified as an environmental impact under CEQA. Instead, as of July 1, 2020, a project subject to CEQA is considered to have a significant negative effect on the environment unless it results in some minimum reduction in average Vehicle Miles Traveled (VMT), because reductions in VMT correspond to reductions in GHG emissions. 1 Packet Pg. 8 LOS DOES NOT GO AWAY: The State’s goal in changing the metric used to determine a significant transportation impact is to encourage land use and transportation decisions that reduce greenhouse gas emissions, encourage infill development, and improve public health through active transportation. This does not mean, however, that cities are forbidden from considering LOS when making land use decisions, as long as LOS is dealt with through policy measures outside of the realm of CEQA. Diamond Bar’s new General Plan, for example, includes a host of policies that require minimum LOS standards to be met, and enables the City to require developers to provide roadway improvements or in-kind contributions toward congestion reduction programs. A hypothetical example of how VMT would be used evaluate the transportation impacts is to consider a home improvement center proposed in the C ity. Previously, the traffic congestion on surrounding intersections would be analyzed under CEQA, and the impacts could be potentially significant. Under SB 743, it would likely be found that such a project improves areawide VMT, because Diamond Bar residents would not have to travel to a Home Depot or Lowe’s in one of our neighboring cities. Although LOS impacts for such a project would no longer be evaluated under CEQA, the City would still have the authority under the General Plan’s Circulation Eleme nt Policies to require a traffic impact analysis that estimates the project’s effects on LOS, and require roadway improvement to upgrade the performance of affected intersections. STUDY SESSION OBJECTIVES: On tonight’s regular meeting agenda, staff is recommending that the City Council adopt a resolution establishing the VMT baselines and thresholds of significance for evaluating future projects. The proposed baselines and thresholds were developed in collaboration with the SGVCOG Planning and Public Works Technical Advisory Committees (TACs) with technical guidance from the transportation consulting firm Fehr & Peers. Fehr & Peers was also one of the subconsultants for the recently -adopted Diamond Bar General Plan 2040 and Climate Action Plan. Transportation Engineer Paul Herrmann will lead the study session and provide a high - level, yet technically-grounded discussion of how the proposed baselines and thresholds were derived for Diamond Bar, and why staff believes that they are appropriate, defensible metrics for future environmental analyses. Staff believes that the interactive format of a study session will best enable the City Council to make an informed decision when considering the proposed resolution. PREPARED BY: 1 Packet Pg. 9 REVIEWED BY: Attachments: 1. 1.a SB 743 Study Session PowerPoint Slides 1 Packet Pg. 10 Planning Commission Senate Bill 743 CEQA Analysis of Transportation Impacts City Council July 21, 2020 1.a Packet Pg. 11 Agenda •Why are we here? •What is SB 743? •What is VMT? •What is Diamond Bar doing? •Defining methodology •Setting thresholds of significance •Setting screening criteria •Questions &Answers 1.a Packet Pg. 12 Evolution of CEQA Guidelines Updates Legislation requiring updates to the CEQA Guidelines AB 32 SB 97 SB 375 AB 1358SB 226 AB 2245 AB 417 SB 743 1.a Packet Pg. 13 CEQA GUIDELINES ADOPTION WITH SB 743 IMPLEMENTATION September 2013: Governor Signed SB 743 December 2018: OPR Finalized State CEQA Guidelines December 2018: Natural Resources Agency Updated CEQA Guidelines July 2020: Law is fully implemented; VMT is mandatory for CEQA 1.a Packet Pg. 14 SB 743 OVERVIEW 1.a Packet Pg. 15 SB 743 OVERVIEW What is it trying to change? Changes the discussion in CEQA on the analysis of transportation impacts on the environment. ❖Eliminates using auto delay,level of service (LOS),and other similar measures of vehicular capacity or traffic congestion as a basis for determining significant impacts on the environment ➢Currently use LOS as a threshold in CEQA to determine the widening of roadways and intersections 1.a Packet Pg. 16 SB 743 OVERVIEW What is it trying to change? Changes the discussion in CEQA on the analysis of transportation impacts on the environment •Requires Vehicle Miles Traveled (VMT)per capita to be the new analysis metric for determining impacts on the environment from transportation •Changes where significant impacts occur and mitigation 1.a Packet Pg. 17 ❖Adopt new thresholds of significance for development projects ❖Publish TIA Guidelines with Screening Criteria and Analysis Methodology ❖Analyze VMT for all projects Step 1) Calculate VMT generated by project Step 2) Compare project VMT to adopted threshold Step 3) Document impact Step 4) Mitigate impact How does the City Comply with SB 743? 1.a Packet Pg. 18 Improving Communities QUESTION/COMMENTS 1.a Packet Pg. 19 Agenda #: 3.1 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: CITY COUNCIL MINUTES OF THE JULY 7, 2020 MEETING. STRATEGIC GOAL: Open, Engaged & Responsive Government RECOMMENDATION: Approve the July 7, 2020 Regular City Council meeting minutes. FINANCIAL IMPACT: None. BACKGROUND/DISCUSSION: Minutes have been prepared and are being presented for approval. PREPARED BY: REVIEWED BY: Attachments: 1. 3.1.a July 7, 2020 City Council Minutes 3.1 Packet Pg. 20 CITY OF DIAMOND BAR MINUTES OF THE CITY COUNCIL REGULAR MEETING JULY 7, 2020 CALL TO ORDER: Mayor Tye called the Regular City Council meeting to order at 6:30 p.m. Mayor Tye stated that consistent with COVID-19 regulations, all Council Members and staff are participating via teleconference and there is no physical location for public attendance. The Public has been invited to join the meeting online or by phone at the numbers printed on the agenda. PLEDGE OF ALLEGIANCE: Mayor Tye led the Pledge of Allegiance. ROLL CALL: Council Members Andrew Chou, Ruth Low, Jennifer “Fred” Mahlke, Mayor Pro Tem Nancy Lyons, and Mayor Steve Tye Staff participating telephonically: Dan Fox, City Manager; Ryan McLean, Assistant City Manager; David DeBerry, City Attorney; Ryan Wright, Parks and Recreation Manager; Anthony Santos, Assistant to the City Manager; David Liu, Public Works Director; Hal Ghafari, Public Works Manager/Assistant City Engineer; Christian Malpica, Associate Engineer; Fabian Aoun, Assistant Engineer; Dianna Honeywell, Director of Finance, Greg Gubman, Director of Community Development; Ken Desforges, Director of Information Services; Marsha Roa, Public Information Manager; Cecilia Arellano, Public Information Coordinator; J.R. Ybarra, Media Specialist; Kristina Santana, City Clerk APPROVAL OF AGENDA: As submitted. 1. CITY MANAGER REPORTS AND RECOMMENDATIONS: 57/60 Confluence Project Update – Metro representative Robert Pacheco, gave a presentation. 2. PUBLIC COMMENTS: CC/Santana stated that public comments submitted by email were forwarded to the City Council, and provided a brief summary of each for the record: Juan Reynoso asked the Council to reconsider Consent Calendar Item No. 3.6. The following public comments were offered via telephone during the Council meeting: Juan Reynoso stated that he was available to answer any questions. Jacob Wolak, Field Representative for Congressman Cisneros updated the City Council on the Congressman’s legislative work. 3.1.a Packet Pg. 21 JULY 7, 2020 PAGE 2 CITY COUNCIL Vivian Cao, Senator Ling Ling Chang’s office updated Council on the Senator’s legislative work. 3. CONSENT CALENDAR: MPT/Lyons moved, C/Mahlke seconded, to approve the Consent Calendar as presented with the exception of Item 3.9 pulled by C/Chou and M/Tye, 3.12 pulled by C/Low, and 3.13 pulled by C/Chou. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Chou, Low, Mahlke, MPT/Lyons, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None 3.1 APPROVED CITY COUNCIL MINUTES: 3.1a JUNE 9, 2020 SPECIAL MEETING 3.1b JUNE 16, 2020 REGULAR MEETING 3.2 CITY COUNCIL RECEIPT OF PLANNING COMMISSION MINUTES: 3.2a MAY 12, 2020 REGULAR MEETING 3.2b MAY 26, 2020 REGULAR MEETING 3.3 RATIFIED CHECK REGISTER DATED JUNE 4, 2020 THROUGH JUNE 29, 2020 TOTALING $1,718,778.78. 3.4 APPROVED MAY 2020 TREASURER’S STATEMENT. 3.5 APPROVED FOURTH AMENDMENT TO THE CONSULTING SERVICES AGREEMENT WITH DIANA CHO AND ASSOCIATES TO PROVIDE COMMUNITY DEVELOPMENT BLOCK GRANT LABOR AND CONTRACT COMPLIANCE SERVICES THROUGH JUNE 30, 2021. 3.6 APPROVED MAINTENANCE SERVICES AGREEMENT WITH WOODS MAINTENANCE SERVICES, INC. (DBA GRAFFITI CONTROL SYSTEMS) TO PROVIDE GRAFFITI ABATEMENT SERVICES THROUGH JUNE 30, 2023. 3.7 ADOPTED UPDATED RESOLUTION NO. 2020-22 EXTENDING THE DECLARED LOCAL EMERGENCY REGARDING NOVEL CORONAVIROS (COVID-19) 3.8 ADOPTED RESOLUTION NO. 2020-23 CALLING AND GIVING NOTICE OF GENERAL MUNICIPAL ELECTION AND CONSOLIDATING THE GENERAL MUNICIPAL ELECTION WITH THE STATEWIDE GENERAL ELECTION ON NOVEMBER 3, 2020; AND, ADOPTED RESOLUTION NO. 2020-24 ADOPTING REGULATIONS RELATED TO CANDIDATE STATEMENTS. 3.1.a Packet Pg. 22 JULY 7, 2020 PAGE 3 CITY COUNCIL 3.10 APPROVED AN ADMINISTERING AGENCY-STATE AGREEMENT ACCEPTING $72,000 IN GRANT FUNDS FOR THE PREPARATION OF A LOCAL ROADWAY SAFETY PLAN; ADOPTED RESOLUTION NO. 2020-25 AUTHORIZING THE PUBLIC WORKS DIRECTOR/CITY ENGINEER TO SIGN NECESSARY DOCUMENTS IN ADMINISTERING THE GRANT; AND, ESTABLISHED FUND 162 – LOCAL ROADWAY SAFETY PLAN GRANT FUND. 3.11 ADOPTED RESOLUTION NO. 2020-26 TRANSFERRING AND CONVEYING THE SANITARY SEWER PRIVATE CONTRACT NO. DB2011-01 LOCATED ON LARKSTONE DRIVE (TRACT 63623, SOUTH POINT DEVELOPMENT) IN THE CITY OF DIAMOND BAR TO THE LOS ANGELES COUNTY SEWER MAINTENANCE DISTRICT FOR FUTURE OPERATION, MAINTENANCE, REPAIR AND IMPROVEMENT. 3.14 ADOPTED RESOLUTION NO. 2020-27 (NO. 38) DECLARING THE CITY’S INTENTION TO LEVY AND COLLECT ASSESSMENTS FOR LANDSCAPE ASSESSMENT DISTRICT NO. 38 AND DIRECTED THE CITY CLERK TO ADVERTISE THE PUBLIC HEARING TO BE SET FOR JULY 21st, 2020 REGULAR CITY COUNCIL MEETING; ADOPTED RESOLUTION NO. 2020-28 (No. 39) DECLARING THE CITY’S INTENTION TO LEVY AND COLLECT ASSESSMENTS FOR LANDSCAPE ASSESSMENT DISTRICT NO. 39 AND DIRECTED THE CITY CLERK TO ADVERTISE THE PUBLIC HEARING TO BE SET FOR THE JULY 21ST 2020 REGULAR CITY COUNCIL MEETING; AND, ADOPTED RESOLUTION NO. 2020-29 (No. 41) DECLARING THE CITY’S INTENTION TO LEVY AND COLLECT ASSESSMENTS FOR LANDSCAPE ASSESSMENT DISTRICT NO. 41 AND DIRECTED THE CITY CLERK TO ADVERTIZE THE PUBLIC HEARING TO BE SET FOR THE JULY 21ST, 2020 REGULAR CITY COUNCIL MEETING. ITEMS WITHDRAWN FROM CONSENT CALENDAR: 3.9 APPROVE SECOND AMENDMENT TO THE CROSSING GUARD SERVICES AGREEMENT WITH AMERICAN GUARD SERVICES, INC. M/Tye and C/Chou asked when this contract would go into effect with the uncertainty of school re-openings and following CM/Fox’s clarification that the agreement would be in place and go into effect on a time and materials basis when schools reopen, M/Tye moved, C/Chou seconded, to approve Consent Calendar Item 3.9. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Chou, Low, Mahlke, MPT/Lyons, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None 3.1.a Packet Pg. 23 JULY 7, 2020 PAGE 4 CITY COUNCIL 3.12 APPROVE CONSULTANT SERVICES AGREEMENT WITH HUSHMAND ASSOCIATES, INC. FOR THE DESIGN OF DIAMOND BAR CENTER SLOPE STABILIZATION PROJECT. C/Low questioned why the RFP response amounts were so far apart and following PWD Liu’s clarification that the respondent with the lower dollar amount failed to include four essential tasks necessary to remedy the slope, C/Low moved, MPT/Lyons seconded, to approve Consent Calendar Item 3.12. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Chou, Low, Mahlke, MPT/Lyons, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None 3.13 APPROVE NOTICE OF COMPLETION FOR THE INSTALLATION AND IMPLEMENTATION OF THE ADAPTIVE TRAFFIC CONTROL SYSTEM PROJECT (PROJECT #24616). C/Chou asked if the savings of almost $315,000 would be returned to the General Fund or applied to other projects. Following CM/Fox’s response that the 20 percent matching funds (approximately $135,000) would be returned to the Prop A Fund for future programming and the balance of the grant funds would be returned to Metro, C/Chou moved, C/Low seconded, to approve Consent Calendar Item 3.13. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Chou, Low, Mahlke, MPT/Lyons, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None 4. PUBLIC HEARING(S): NONE 5. COUNCIL CONSIDERATION: 5.1 SUPPORT LETTERS REGARDING RESPONSIBLE USE OF FORCE POLICY REFORM. CM/Fox asked for Council discussion and direction to staff as deemed appropriate. During the Council discussion, C/Chou expressed support for both letters. C/Low felt it was important for the Council to acknowledge people’s thoughts and feelings and support of the state’s progressive law enforcement. 3.1.a Packet Pg. 24 JULY 7, 2020 PAGE 5 CITY COUNCIL C/Mahlke favored the letter in support of responsible policing and use of force reform and did not believe it was necessary to have a separate letter for AB 1196 only. M/Tye was not in support of either letter. C/Mahlke felt that the letter to Supervisor Hahn expressed that Diamond Bar is supporting the department working in partnership with the City while it makes decisions to implement and evaluate meaningful reform. However, did not agree with the word “initiate” in the letter. MPT/Lyons was not in support of either letter. C/Low said she was persuaded by M/Tye’s points and questioned why the letter would go to Supervisor Hahn. C/Low stated that upon reflection, she would favor a letter of support to Sheriff Villanueva as outlined by C/Mahlke. MPT/Lyons offered that the Council could direct a letter of support to the Sheriff as discussed by C/Mahlke with a copy to Supervisor Hahn. M/Tye said he would be okay with MPT/Lyons suggestion if it could be an opportunity to make sure the Sheriff understands how much Diamond Bar appreciates Captain Reyes and his team. Following discussion, C/Chou moved, C/Mahlke seconded, to direct staff to redraft the letter of support to Sheriff Villanueva and copy to Supervisor Hahn based upon Council comments. Motion carried by the following Roll Call vote: AYES: COUNCIL MEMBERS: Chou, Low, Mahlke, MPT/Lyons, M/Tye NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None 6. COUNCIL SUBCOMMITTEE REPORTS AND MEETING ATTENDANCE REPORTS/COUNCIL MEMBER COMMENTS: C/Low commented on the 4th of July weekend, congratulated F45 Training on their grand opening and paid tribute to Jess Carbajal who passed away on June 18th. She invited residents to participate in the first zoom CLASS (Councilwomen Learning and Sharing Sessions) on Wednesday, July 22nd at 7:00 p.m. hosted by C/Low, C/Mahlke and MPT/Lyons. C/Chou thanked C/Low for her tribute and u nderstood that tonight’s meeting would also be adjourned in honor of former Diamond Bar Mayor Ron Everett. He congratulated the 64 Diamond Bar Business Grant winners and F45 Training on their grand opening. July 15th is National Hat Day as well as, the tax deadline 3.1.a Packet Pg. 25 JULY 7, 2020 PAGE 6 CITY COUNCIL date. C/Mahlke thanked staff for their efforts and support during meetings. She l ooks forward to joining with her fellow Councilwomen to provide education to the community. She commented on the excessive use of illegal fireworks in her neighborhood. She thanked and encouraged wearing masks during challenging hikes and other community events. She thanked her colleagues for their rigorous public safety discussion. MPT/Lyons talked about the CLASS project, thanked CDD/Gubman for implementing Council’s vision through the Business Recovery Program and said that plans for Restaurant Week were moving forward. She stated that no State of California projects received federal grant monies this year including the SR57/60 Confluence project, which results in further delay of completion. She paid tribute to resident and former Mayor Ron Everett wh o recently passed away. M/Tye spoke about Ron Everett and his extensive community involvement. ADJOURNMENT: With no further business to conduct, M/Tye adjourned the Regular City Council Meeting at 8:34 p.m. in Memory of Ron Everett and Jess Carbajal. Respectfully submitted: __________________________ Kristina Santana, City Clerk The foregoing minutes are hereby approved this 21st day of July, 2020. __________________________ Steve Tye, Mayor 3.1.a Packet Pg. 26 Agenda #: 3.2 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: ESTABLISHMENT OF VEHICLE MILES TRAVELED THRESHOLDS OF SIGNIFICANCE RELATED TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. STRATEGIC GOAL: Safe, Sustainable & Healthy Community RECOMMENDATION: Adopt Resolution No. 2020-30 establishing Vehicles Miles Traveled Thresholds of Significance for purposes of analyzing transportation impacts under the California Environmental Quality Act. FINANCIAL IMPACT: No financial impact. BACKGROUND: Changes in state law have fundamentally redefined how project-generated traffic impacts are measured under the California Environmental Quality Act (CEQA). Rather than evaluating how a project affects motorists, CEQA now requires the impact of project-generated traffic to be measured in terms of its contribution to greenhouse gas (GHG) emissions. The new metric used to assess such impacts is “Vehicle Miles Traveled” (VMT), replacing “Level of Service” (LOS) as the measure of transportation impacts in environmental impact reports and other CEQA documents. This new metric requires the City to establish new baselines and thresholds of significance to evaluate VMT impacts. As part of a collaborative effort led by the San Gabriel Valley Council of Governments (SGVCOG), staff prepared new CEQA transportation impact thresholds for consideration by the Planning Commission and City Council. This report summarizes the state mandate that requires modifying the CEQA thresholds, discusses staff’s recommendations, and includes a draft Resolution to adopt the new CEQA transportation thresholds. 3.2 Packet Pg. 27 Outside of the CEQA process, cities may choose to continue to evaluate projects using the LOS metric, and may still assess fair share fees for intersection and other roadway improvement, and Diamond Bar would continue to do so in accordance with General Plan Goals and Policies. ANALYSIS: SB 743 On September 27, 2013, Governor Jerry Brown signed SB 743 into law and started a process intended to fundamentally change how transportation impact analysis is conducted as part of the CEQA review of projects. SB 743 eliminates LOS as the basis for determining transportation impacts under CEQA and requires the use of VMT instead. The state is shifting the focus of CEQA traffic analysis from measuring a project’s impact on automobile delay (LOS) to measuring the amount and distance of automobile travel that is attributable to a project (VMT). The State’s goal in changing the metric used to determine a significant transportation impact is to encourage land use and transportation decisions that reduce greenhouse gas emissions, encourage infill development, and improve public health through active transportation. To implement the legislation, lead agencies will need to determine appropriate VMT methodologies, thresholds, and feasible mitigation measures. Since VMT is a new methodology to analyze transportation impacts, there was a need to develop appropriate guidance for projects subject to environmental review. The guidance is to ensure that all projects subject to review by that agency use the same data, approaches, and analytical tools. A study was conducted by SGVCOG to assist its member agencies in understanding the specific questions that need to be addressed when making these determinations and to provide research, analysis, and other evidence to support their final SB 743 implementation decisions. The goal of the study was to provide jurisdictions as much facts to help jurisdictions develop a record. The recommendations provided here by staff have been adjusted to better suit the City’s needs. SB 743 must be implemented by lead agencies by July 1, 2020. Since SB 743 represents a significant departure from the City’s current practice, the City must address the following questions below prior to taking any action: 1. Methodology – What methodology should be used to forecast project-generated VMT and the project’s effect on VMT under baseline and cumulative conditions, and how does the selection of a threshold influence the methodology decision? 2. Thresholds – What threshold options are available to each jurisdiction and what substantial evidence exists to support selecting a specific VMT threshold? 3. Mitigation – What would constitute feasible mitigation measures for a VMT impact given the land use and transportation context of the SGVCOG region? The methodology to forecast project-generated VMT, the VMT thresholds, and the mitigation measures utilized must be adopted by each jurisdiction. 3.2 Packet Pg. 28 Potential VMT thresholds were assessed within the context of the objectives of SB 743, legal opinions related to the legislation, proposed CEQA Guidelines Updates, and the Technical Advisory produced by the Governor's Office of Planning and Research (OPR). The thresholds which the OPR’s Technical Advisory Committee recommended is that proposed developments should generate VMT per person that is at least 15% below existing VMT per capita. In addition, the OPR identified projects and types of projects which should be “screened” from a VMT analysis, meaning they would be automatically found to have no significant traffic impact. CEQA Transportation Thresholds Which projects should be exempt from VMT Analysis? Project Screening Criteria. As noted above, the Governor’s OPR has identified guidelines for projects which may be screened and would therefore be exempt from a VMT analysis. The theory is that the development of these projects will by their nature reduce vehicle trips and therefore be in conformance with SB 743. Recommendation. In accordance with OPR guidelines, screen out projects that fall into the following categories: • Retail projects up to 50,000 SF in floor area. • Projects generating less than 110 daily trips. • Residential and office projects located in low VMT areas. Low VMT is defined as 15% below the City baseline average VMT metrics for that area. • Projects within a Transit Priority Area (TPA). A TPA is defined as locations within ½ mile of a major transit stop or station (e.g. Gold Line or Metrolink), or within ½ mile of a high-quality transit corridor with headways of 15 minutes or less during peak commute hours. • Affordable housing developments or affordable housing units within mixed -use developments. • Transportation projects that promote non -auto travel, improve safety, or improve traffic operations at current bottlenecks, such as transit, bicycle and pedestrian facilities, intersection traffic control (e.g., traffic signals or roundabouts), or widening at intersections to provide new turn lanes. What is an appropriate VMT significant impact threshold? • Transportation Projects: Significant impacts would occur if the projects results in a net increase in VMT. • Projects in Compliance with Regional Long-Range Visioning Plan: Significant impacts would occur if the projects are inconsistent with the Southern California 3.2 Packet Pg. 29 Association of Governments’ Regional Transportation Plan/Sustainable Communities Strategy (SCAG RTP/SCS). Threshold Options for Development Projects – Potential VMT thresholds were assessed within the context of the objectives of SB 743, legal opinions related to the legislation, proposed CEQA Guidelines updates, and the Technical Advisory produced by the Governor's OPR. The results of the study being conducted by SGVCOG, identified fou r threshold options for consideration by lead agencies. Option 1: Thresholds consistent with OPR’s Technical Advisory, recommending that proposed developments generate VMT that is 15% below existing VMT; Option 2: Thresholds consistent with Lead Agency a ir quality, greenhouse gas emissions reduction, and energy conservation goals (14.3% below existing); Option 3: Thresholds consistent with the Regional Transportation Plan/Sustainable Communities Strategy future year VMT projects by jurisdiction or subregion (better than General Plan Buildout); and Option 4: Thresholds based on baseline VMT performance by jurisdiction or subregion (better than existing). Recommendation – Based on the research conducted by SGVCOG, a review of potential projects, internal staff discussions, and a desire to maintain thresholds which are in keeping with the recommendations of the Governor’s OPR, it is recommended that the City choose Option 1, utilizing a threshold consistent with 15% below the City of Diamond Bar’s average VMT for land development projects. This is more clearly defined in Table 1, as are the thresholds for other types of projects. What are appropriate mitigation strategies? Transportation Demand Management (TDM) strategies and their effectiveness for reducing VMT are currently being reviewed and assessed for relevancy by SGVCOG. Key strategies which have been examined and could prove effective include: • Diversifying land use; • Improving pedestrian networks; • Implementing traffic calming infrastructure; • Building low-street bicycle network improvements; • Encouraging telecommuting and alternative work schedules; and • Providing ride-share programs Due to limitations of project-by-project approaches to reducing VMT, an evaluation of 3.2 Packet Pg. 30 larger mitigation programs is being examined by SGVCOG. New program concepts could include VMT mitigation banks and exchanges. These are innovative concepts that have not yet been developed and tested but are being considered in areas where limited mitigation options would otherwise exist. SGVCOG is looking into the feasibility of a VMT mitigation bank or exchange in order to further assist lead agencies in implementing SB 743. Recommendation – At this time, staff does not recommend adoption of specific mitigation measures, but supports the acceptance of mitigation measures that have been analyzed by SGVCOG and proven to be effective. General Plan Consistency The new CEQA VMT transportation impact thresholds are consistent with the objectives, principles, and standards of the General Plan. The Land Use & Economic Development, Community Character & Placemaking, Circulation, Resource Conservation, and Community Health & Sustainability Elements have a numerous goals and policies relevant to the new CEQA transportation impact thres holds, including the following: GENERAL PLAN ELEMENT GOALS & POLICIES Land Use & Economic Development LU-G-4, LU-P-3, LU-P-4, LU-P-7, LU-G-9, LU-P-14, LU-G-12, LU-G-13, LU-G-14, LU-G- 19, LU-G-26, LU-P-15, LU-P-21, LU-P-26, LU- P-28, LU-P-29, LU-P-31, LU-P-32, LU-P-33, LU-P-35, LU-P-41, LU-P-45, LU-P-49, LU-P- 51, ED-G-2, ED-G-5, ED-P-8, ED-P-9 Community Character & Placemaking CC-P-23, CC-P-25, CC-P-26, CC-G-14, CC-P- 56, CC-P-58, CC-P-59, CC-G-17, CC-P-64 Circulation CR-G-1, CR-G-2, CR-G-3, CR-G-4, CR-G-5, CR-G-6, CR-P-3, CR-P-4, CR-P-5, CR-P-7, CR-G-8, CR-P-12, CR-P-16, CR-P-24, CR-P- 25, CR-P-54 Resource Conservation RC-G-14, RC-P-35 Community Health & Sustainability CHS-G-2, CHS-P-4, CHS-P-5, CHS-P-6, CHS-P-33 Level of Service (LOS) In addition to CEQA-level analyses, the City will continue to require traffic impact analyses to be consistent with the General Plan goals and policies that set standards for which City infrastructure will strive to maintain. Therefore, a Traffic Impact Analysis (TIA) will continue to evaluate intersection and roadway LOS impacts as part of the City’s TIA Guidelines. Planning Commission Recommendation 3.2 Packet Pg. 31 On May 26, 2020, the Planning Commission reviewed the parameters presented for adopting VMT as the analytical tool in determining a project’s transportation impact under CEQA and reviewed the thresholds presented by staff to be used as part of a VMT analysis. By a unanimous vote, the Commission recommended that the City Council adopt these parameters and thresholds. The Planning Commission Resolution is included as Attachment 2. Following the adoption of the Planning Commission resolution, SGVCOG provided revised guidance regarding the methodology for determining the baselines from which VMT thresholds are measured. Rather than establishing the methodology by resolution, the new guidance recommends that methodologies be established and updated in accordance with industry best practices. Therefore, the recommended methodology set forth in the Planning Commission resolution is left out of the City Council resolution. ENVIRONMENTAL ASSESSMENT: The new CEQA VMT transportation thresholds has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA) and the State CEQA Guidelines. The adoption of new local CEQA thresholds of significance for transportation impacts and the adoption of new Local Transportation Assessment Guidelines will not have a significant environmental impact and are exempt from the CEQA pursuant to Section 15308 of Title 14 of the California Code of Regulations because the two actions are undertaken by the City for the protection of the environment. The revised CEQA thresholds will be compliant with a State mandate (SB 743) and will be used in a regulatory process (CEQA process) that involves procedures for the protection of the environment. Accordingly, the City Council will consider the recommendation to find the Resolution exempt from the environmental review requirements of CEQA pursuant to Section 15308 of Title 14 of the California Code of Regulations. LEGAL REVIEW: The City Attorney has reviewed and approved the Resolution as to form. PREPARED BY: 3.2 Packet Pg. 32 REVIEWED BY: Attachments: 1. 3.2.a City Council Resolution No. 2020-30 2. 3.2.b Planning Commission Resolution No. 2020-12 3.2 Packet Pg. 33 RESOLUTION NO. 2020-30 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR, CALIFORNIA, ADOPTING “VEHICLE MILES TRAVELED” THRESHOLDS OF SIGNIFICANCE FOR PURPOSES OF ANALYZING TRANSPORTATION IMPACTS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. A. RECITALS 1. WHEREAS, on April 18, 1989, the City of Diamond Bar was established as a duly organized municipal corporation of the State of California. 2. WHEREAS, on July 25, 1995, the City of Diamond Bar adopted its General Plan incorporating all State mandated elements, and portions of the General Plan have been updated from time to time. 3. WHEREAS, on December 17, 2019, the City of Diamond Bar adopted its comprehensive update of the General Plan (“General Plan 2040”). 4. WHEREAS, the California Environmental Quality Act Guidelines (“CEQA Guidelines”) encourage public agencies to develop and publish generally applicable “thresholds of significance” to be used in determining the significance of a project’s environmental effects. 5. WHEREAS, CEQA Guidelines Section 15064.7(a) defines a threshold of significance as “an identifiable quantitative, qualitative or performance level of a particular environmental effect, noncompliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant”. 6. WHEREAS, CEQA Guidelines Section 15064.7(b) requires that thresholds of significance must be adopted by ordinance, resolution, rule, or regulations, developed through a public review process, and be supported by substantial evidence. 7. WHEREAS, pursuant to CEQA Guidelines Section 15064.7(c), when adopting thresholds of significance, a public agency may consider thresholds of significance adopted or recommended by other public agencies provided that the decision of the agency is supported by substantial evidence. 8. WHEREAS, Senate Bill 743, enacted in 2013 and codified in Public Resources Code Section 21099, required changes to the CEQA Guidelines regarding the criteria for determining the significance of transportation impacts of projects . 9. WHEREAS, in 2018, the Governor’s Office of Planning and Research (“OPR”) proposed, and the California Natural Resources Agency certified and adopted, new CEQA Guidelines Section 15064.3 that identifies vehicle miles traveled (“VMT”) – meaning the amount and distance of automobile travel attributable to a project – as the most appropriate metric to evaluate a project’s transportation impacts. 10. WHEREAS, as a result, automobile delay, as measured by “level of service” and 3.2.a Packet Pg. 34 Resolution No. 2020-30 2 other similar metrics, generally no longer constitutes a significant environmental effect under CEQA. 11. WHEREAS, CEQA Guidelines Section 15064.3 goes into effect on July 1, 2020, though public agencies may elect to be go verned by this section immediately. 12. WHEREAS, the City of Diamond Bar, following a public review process consisting of staff presentations before the Planning Commission, wishes to recommend adopting the VMT thresholds of significance for determining the s ignificance of transportation impacts to the City Council. 13. WHEREAS, on May 26, 2020, at a regularly scheduled meeting, the Planning Commission reviewed and considered the City of Diamond Bar’s proposed VMT thresholds of significance for determining the significance of transportation impacts and recommends adoption to the City Council. 14. WHEREAS, on July 21, 2020, at a regularly scheduled meeting, the City Council reviewed and considered the City of Diamond Bar’s proposed VMT thresholds of significance for determining the significance of transportation impacts. B. RESOLUTION NOW, THEREFORE, it is found, determined and resolved by the City Council of the City of Diamond Bar as follows: 1. This City Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct. 2. Based upon the facts and evidence presented during the City Council meeting regarding the City’s proposed VMT thresholds of significance for determining the significance of transportation impacts, including documentary evidence provided by City staff, the City Council hereby finds as follows: (a) The new CEQA VMT transportation impact thresholds are consistent with the City’s General Plan 2040’s numerous goals and policies adopted December 17, 2019, including, but not limited to, the following: (i) Land Use & Economic Development Element • Goals: LU-G-4, LU-G-9, LU-G-12, LU-G-13, LU-G-14, LU-G-19, LU-G-26, ED-G-2, ED-G-5 • Policies: LU-P-3, LU-P-4, LU-P-7, LU-P-14, LU-P-15, LU-P-21, LU-P-26, LU-P-28, LU-P-29, LU-P-31, LU-P-32, LU-P-33, LU-P- 35, LU-P-41, LU-P-45, LU-P-49, LU-P-51, ED-P-9, ED-P-9 (ii) Community Character & Placemaking Element • Goals: CC-G-14, CC-G-17 • Policies: CC-P-23, CC-P-25, CC-P-26, CC-P-56, CC-P-58, CC- P-59, CC-P-64 3.2.a Packet Pg. 35 Resolution No. 2020-30 3 (iii) Circulation Element • Goals: CR-G-1, CR-G-2, CR-G-3, CR-G-4, CR-G-5, CR-G-6, CR-G-8 • Policies: CR-P-3, CR-P-4, CR-P-5, CR-P-7, CR-P-12, CR-P-16, CR-P-24, CR-P-25, CR-P- 54 (iv) Resource Conservation Element • Goal: RC-G-14 • Policy: RC-P-35 (v) Community Health & Sustainability Element • Goal: CHS-G-2 • Policies: CHS-P-4, CHS-P-5, CHS-P-6, CHS-P-33 (b) The new CEQA VMT transportation thresholds has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA) and the State CEQA Guidelines. The adoption of new local CEQA thresholds of significance for transportation impacts will not have a significant environmental impact and are exempt from the CEQA pursuant to Section 15308 of Title 14 of the California Code of Regulations because the two actions are undertaken by the City for the protection of the environment. The revised CEQA thresholds will be compliant with a State mandate (SB 743) and will be used in a regulatory process (CEQA process) that involves procedures for the protection of the environment. Accordingly, the City Council will consider the recommendation to find the Resolution exempt from the environmental review requirements of CEQA pursuant to Section 15308 of Title 14 of the California Code of Regulations. 3. Based on the findings and conclusions set forth above, the City Council adopts the VMT thresholds of significance as Exhibit A. The City Council shall: (a) Certify as to the adoption of this Resolution. PASSED, APPROVED AND ADOPTED this 21st day of July, 2020. ____________________________ Steve Tye, Mayor 3.2.a Packet Pg. 36 Resolution No. 2020-30 4 ATTEST: I, Kristina Santana, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Resolution was passed, approved and adopted at a regular m eeting of the City Council of the City of Diamond Bar held on the 21st day of July, 2020, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ___________________________ Kristina Santana, City Clerk EXHIBIT: Exhibit A: Table 1: Significance Thresholds for Transportation 3.2.a Packet Pg. 37 Resolution No. 2020-30 5 City of Diamond Bar VMT Baselines and Thresholds of Significance Consistent with State CEQA guidelines section 15064.3, the City of Diamond Bar has adopted the project baselines and thresholds of significance set forth in Table 1 to guide in determining when a project will have a significant transportation impact. Table 1 Project Type Thresholds Land Use Plan 1) Project Impact: A significant impact would occur if the VMT rate for the plan would exceed 15% below the applicable baseline VMT rate. 2) Cumulative Project Effect: A significant impact would occur if the project increases total regional VMT compared to cumulative no project conditions. Land Use Project 1) Project Impact: A significant impact would occur if the VMT rate for the project would exceed 15% below the applicable baseline VMT rate. 2) Cumulative Project Effect: A significant impact would occur if the project increases total regional VMT compared to cumulative no project conditions. Retail Project (over 50,000 square feet) 1) Project Impact: A significant impact would occur if the VMT rate for the project would exceed 15% below the applicable baseline VMT. 2) Cumulative Project Effect: A significant impact would occur if the project increases total VMT in the study area compared to baseline conditions. Transportation Project A significant impact would occur if the project causes a net increase in total regional VMT compared to baseline conditions, opening year no project conditions, or cumulative no project conditions. All Land Use and Transportation Projects A significant impact would occur if the project is inconsistent with the RTP/SCS. Note: Baseline VMT rate is defined as the City of Diamond Bar average VMT per service population (City employment and residents). Exhibit A 3.2.a Packet Pg. 38 3.2.b Packet Pg. 39 3.2.b Packet Pg. 40 3.2.b Packet Pg. 41 3.2.b Packet Pg. 42 3.2.b Packet Pg. 43 3.2.b Packet Pg. 44 Agenda #: 3.3 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: SECOND AMENDMENT TO THE CONSULTING SERVICES AGREEMENT WITH SIMPSON ADVERTISING, INC. FOR SPECIALTY GRAPHIC DESIGN SERVICES THROUGH JUNE 30, 2021. STRATEGIC GOAL: Open, Engaged & Responsive Government RECOMMENDATION: Approve, and authorize Mayor to sign, the Second Amendment to Consultant Services Agreement with Simpson Advertising through June 30, 2021. FINANCIAL IMPACT: The total not-to-exceed amount of the Agreement for Fiscal Year 2020-21 would be $61,050. Sufficient funds are included in the FY 2020-21 Public Information Division and Parks and Recreation Department (Diamond Bar Center) budgets to cover the cost of these services. BACKGROUND: In July 2019 the City entered into an agreement with Simpson Advertising, Inc. for the provision of specialty design services for a not to exceed amount of $44,850 annually and as a result of a few additional projects, including COVID -19 related marketing pieces, a first amendment in the amount of $8,000 was approved on May 19, 2020 for a total not to exceed amount of $52,850 for the 2019-20 fiscal year. The services for this fiscal year includes the production of the City’s monthly newsletter in a 4-page format issued three times per year, a 6-page format issued three times per year, which is one more than last year, and the 32 -page format that includes the Recreation brochure produced three times per year for a total of $31,050 and includes a miscellaneous project amount of $30,000 for a total not to exceed amount of $61,050 for the 2020-21 fiscal year. In addition to the City newsletter (Diamond Bar Connection) and Recreation Activities 3.3 Packet Pg. 45 Guide, examples of projects Simpson will continue to provide assistance with includes the design of the annual calendar and services guide, Diamond Bar Center online and print marketing materials, Through My Lens photo contest gallery artwork, and most recently the Emergency Alert sign up outreach. New projects for this fiscal year will consist of additional COVID-19 related outreach, redesign for expansion of the City newsletter from 4-pages to 6-pages three times a year to include additional Recreation and services information, development of materials to promote the online Report an Issue program where residents may request maintenance services and the launch of the City’s new mobile application later this year. ANALYSIS: Since 2004 the City has utilized Simpson to assist with the production of various communication and marketing projects that supports the Council’s strategic goal of an Open, Engaged & Responsive Government. During these past sixteen years, Simpson has consistently produced professional, high-quality work with a quick turnaround and at competitive rates that have remained the same over the past several years. LEGAL REVIEW: The City Attorney has reviewed and approved the amended agreement as to form. PREPARED BY: REVIEWED BY: Attachments: 1. 3.3.a Second Amendment - Simpson Contract 3.3 Packet Pg. 46 1450782.1 SECOND AMENDMENT TO CONSULTANT SERVICES AGREEMENT This Second Amendment to Consultant Services Agreement (“Second Amendment”) is made and entered into as of July 1, 2020, by and between the City of Diamond Bar, a municipal corporation (“City”), and Simpson Advertising, Inc. a California corporation (herein referred to as the “Consultant”) with reference to the following: A. The City and the Consultant entered into that certain Consultant Services Agreement dated as of July 6, 2019 for the provision of graphic design services, which is incorporated herein by this reference (the “Original Agreement”); and B. The City and the Consultant entered into that certain First Amendment dated as of May 19, 2020, which is incorporated herein by this reference (“First Amendment”), which First Amendment and Original Agreement collectively are referred to herein as the "Agreement"); C. The City and the Consultant desire to amend the Agreement as provided herein. NOW, THEREFORE, the parties agree as follows: 1. Defined Terms. Except as otherwise defined herein, all capitalized terms used herein shall have the meanings set forth for such terms in the Original Agreement. 2. Revised Scope of Services. The Scope of Services, Exhibit "A" to the Original Agreement and First Amendment, is hereby amended, modified and supplemented to include the services described in Exhibit "A" attached hereto and incorporated herein by this reference. 3. Term. The Term of the Original Agreement as set forth in Section 2 therein is from July 1, 2019 and shall continue until June 30, 2020. This Second Amendment shall extend the Term up to and including June 30, 2021. 4 Compensation. The total not-to-exceed compensation set forth in Section 3 of the Original Agreement, was the sum of forty-four thousand, eight hundred and fifty dollars ($44,850). The First Amendment amended Section 3 of the Original Agreement to provide for a total not-to-exceed compensation in the sum of fifty-two thousand, eight hundred and fifty dollars ($52,850). The total not-to-exceed compensation of the Agreement is hereby amended to provide for an increase of sixty-one thousand and fifty dollars ($61,050) so that the total not-to-exceed compensation, as amended by this Second Amendment shall not exceed one hundred and thirteen thousand and nine hundred dollars 3.3.a Packet Pg. 47 3.3.a Packet Pg. 48 REQUEST FOR BIDS - GRAPHIC DESIGN SERVICES THE CITY OF DIAMOND BAR • DB CONNECTION PUBLICATIONS July 7, 2020 Marsha Roa City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 Dear Ms. Marsha Roa, We appreciate the opportunity to submit a graphic design services proposal for Diamond Bar‘s DB Connection publications and miscellaneous projects. Our creative talents and dependable service, coupled with over 40 years of experience in working with municipalities (16 years with the City Diamond Bar), make us a perfect fit for Diamond Bar’s graphic design services needs. We are very pleased to submit our proposal that include same rates as last year and look forward to working with the City of Diamond Bar. SCOPE OF SERVICES Project Description The City of Diamond Bar’s monthly newsletter, DB Connection, is to be delivered to residents and businesses as: – a 4-page publication seven (6) times per year, and – a 6-page publication two (3) times per year – a 32-page publication three (3) times per year to include the recreation activities guide. City staff will provide vendor with content in a Word document and some photos/graphic files electronically. Vendor may be asked to secure additional stock images to complete project as agreed to by City staff. Vendor shall provide to City graphic design and layout of newsletter and/or recreation guide with same format and design of current publications and as follows: two (2) proofs, a draft and a second draft with corrections as provided by City staff. Once approved, packaged files are to be sent to printer electronically. Staff will coordinate production schedule with vendor upon award of contract. Exhibit A for FY 2020-21 Second Amendment to Agreement 3.3.a Packet Pg. 49 GRAPHIC DESIGN SPECIFICATIONS Newsletter (DB Connection) – Six times per year 4-Page newsletter size of 16.75” x 10.875” folded and trimmed to finished size of 8.375” x 10.875”, 4/4 process with bleeds on 80# gloss book. Newsletter (DB Connection) – Three times per year 6-Page newsletter size of 25.125” x 10.875” folded and trimmed to finished size of 8.375” x 10.875”, 4/4 process with bleeds on 80# gloss book. Recreation Guide – Three times per year 32-Page self-cover Recreation Guide size of 16.75” x 10.875”, finished size of 8.375” x 10.875”, saddle stitched on 10.875” side, 4/4 process with bleeds on 70# gloss book white. GRAPHIC DESIGN FEES Simpson Advertising is pleased to provide graphic design costs for DB Connection publications. Costs include up to 3 rounds of client revisions, PDF proofs for client review and edits, a final PDF for website posting, and electronic transfer of files to a print vendor upon client approval to go to print. Fees also include the research and purchase of up to 5 stock images per issue. n 4-Page DB Connection Newsletter: Per Issue 6 Issues Sales Tax Total (6 Issues & Sales Tax) $ 1,575.00 $ 9,450.00 N/A* $ 9,450.00 n 6-Page DB Connection Newsletter: Per Issue 3 Issues Sales Tax Total (3 Issues & Sales Tax) $ 2,275.00 $ 6,825.00 N/A* $ 6,825.00 n 32-Page DB Connection Newsletter and Recreation Activities Guide: Per Issue 3 Issues Sales Tax Total (3 Issues & Sales Tax) $ 4,925.00 $ 14,775.00 N/A* $ 14,775.00 ______________________ Graphic Services Grand Total $ 31,050.00* ADDITIONAL GRAPHIC DESIGN FEES Client edits beyond three rounds: Cost per Issue per hour $ 75.00 Hourly rates for miscellaneous graphic design projects: Design per hour $ 120.00 Production per hour $ 100.00 *Files are not subject to State sales tax when transmitted electronically. Thanks again for the opportunity to submit a graphic design services proposal for DB Connection publications and miscellaneous projects. We look forward to working with you. Best regards, Jeff Simpson, President (562) 949-9780 • Jeff@Simpsonadvertisinginc.com Debbie Baker, Corporate Secretary (562) 949-9780 • Cell (562) 400-4635 • Debbie@Simpsonadvertisinginc.com 3.3.a Packet Pg. 50 Agenda #: 3.4 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: PURCHASE ORDER WITH SOUTHERN CALIFORNIA NEWSPAPER GROUP FOR PRINTING AND MAILING SERVICES FOR THE CITY NEWSLETTER, RECREATION BROCHURE AND CALENDAR AND SERVICES GUIDE THROUGH JUNE 30, 2021. STRATEGIC GOAL: Open, Engaged & Responsive Government RECOMMENDATION: Approve, and authorize the City Manager to sign, a Purchase Order with Southern California Newspaper Group (SCNG) in a not-to-exceed amount of $53,998.86. FINANCIAL IMPACT: The total not-to-exceed amount of the purchase order for the 2020-21 Fiscal Year would be $53,998.86. Sufficient funds are included in the Public Information printing budget to cover the cost of these services. BACKGROUND: A key component of the City’s community outreach efforts is a monthly newsletter titled Diamond Bar Connection. This newsletter serves as the consistent, primary source of printed communication between the City and its residents and businesses. Produced in full-color, Diamond Bar Connection is issued as four-page publication for six months, increased to a six-page publication three times year to provide expanded event and services coverage, and is expanded to a 32-page brochure for the remaining three months to include the recreation activities guide. Each issue is mailed monthly to approximately 22,500 residential and business addresses with additional copies printed for placement on information racks in various City facilities and distribution at City special events. The City calendar and services guide is a 52-page brochure printed annually to highlight City services, monthly activities that includes regular City Council and Commission 3.4 Packet Pg. 51 meetings and special events. The services portion of the guide contains multip le directories for department contact information, local elected officials and partner agencies that provide services to the Diamond Bar community. The brochure also features winning entries from the City’s annual Through My Lens annual photo contest. ANALYSIS: As per the City’s purchasing policy, bids were solicited from twelve (12) local commercial printers and a total of six (6) qualified responses were received as follows: SCNG Printing $53,998.86 Advantage Mailing $57,731.00 Boss Litho $63,062.56 Direct Connection $67,285.10 PM Group $69,768.78 Castle Press $90,473.29 The lowest responsible bidder is SCNG. The City has utilized their service for the past year and has been satisfied with the quality, quick production time and communication they have provided. PREPARED BY: REVIEWED BY: 3.4 Packet Pg. 52 Agenda #: 3.5 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: CONSULTING SERVICES AGREEMENT WITH KOA CORPORATION FOR PREPARATION OF LOCAL ROADWAY SAFETY PLAN. STRATEGIC GOAL: Safe, Sustainable & Healthy Community RECOMMENDATION: Approve, and authorize the Mayor to sign, the Consulting Services Agreement with KOA Corporation in the amount not to exceed $79,870. FINANCIAL IMPACT: The State of California has awarded the City a grant up to $72,000 to develop the Local Roadway Safety Plan. The City is required to provide a ten (10) percent local match fund. In Fiscal Year 2020-21, there are adequate funds in the Public Works Operating Budget for the City’s match amount of $7,987. BACKGROUND/DISCUSSION: The City has been awarded a grant by the California Department of Transportation (Caltrans) to develop a Local Roadway Safety Plan (LRSP). On July 7, 2020, the City Council approved the Administering Agency-State Agreement with Caltrans and Program Supplement document accepting $72,000 in grant funds to prepare an LRSP for the City. As mandated, the LRSP is considered the local supplement to the State’s Strategic Highway Safety Plan and is specific to each jurisdiction. The LRSP will be developed for the City to address roadway safety needs and should demonstrate the City’s responsiveness to safety challenges. The document will be prepared by reaching out to the stakeholders and will include an analysis of available traffic safety data/information. By following an approach based on four (4) Es of traffic safety (Engineering, Enforcement, Education, and Emergency Services), our LRSP will showcase the results of these past efforts while identifying any further enhanced 3.5 Packet Pg. 53 improvements. The defined approach/procedure includes certain technical methods and utilizes public outreach which requires expertise, technology, and staffing capacity available through traffic consulting firms. Therefore, Staff issued a Request for Proposals (RFP) in January 2020 for professional consulting services for preparation of an LRSP. In response to the RFP, five (5) proposals from the following firms were received: Firm Fee ($) AMN Management Inc. 48,325* Iteris, Inc. 79,780 KOA Corporation 79,870 TJKM Transportation Consultants 79,972 Transtech Engineers, Inc. 78,050 *Resource allocations provided in this proposal was significantly lower than the other proposals and the expectations of the City. Staff evaluated the proposals based on the following criteria: • The consultant’s demonstrated understanding of the scope of work; • Completeness of proposal; • Firm’s track record and key project team members’ experiences in performing similar work; • Timeliness in accomplishing work assignments in the agreed work; • The resources required to perform the requested services; and • References. In consideration of the six (6) criteria mentioned above, Staff reviewed the proposals and ranked the KOA Corporation’s proposal the highest due to: 1) General responsiveness of the proposal to the City’s RFP; 2) The staff and firm’s experience with similar projects; 3) The staff and firm’s familiarity with the local communities, agencies, and other stakeholders; 4) The staff and firm’s firsthand familiarity with the City’s priorities and past efforts and investments on traffic safety; and 5) The proposal's approach and methodology, including the firm’s use of technology in data analysis and presentation. Staff recommends the approval of a consulting services a greement with KOA Corporation for the preparation of the City’s LRSP. LEGAL REVIEW: The City Attorney has reviewed and approved the Consulting Services Agreement as to 3.5 Packet Pg. 54 form. PREPARED BY: REVIEWED BY: Attachments: 1. 3.5.a KOA Corporation - Consulting Services Agreement 3.5 Packet Pg. 55 1 Professional Services - LRSP 1292538.1 CONSULTING SERVICES AGREEMENT Preparation of Local Roadway Safety Plan THIS AGREEMENT (the "Agreement") is made as of July 21, 2020 by and between the City of Diamond Bar, a municipal corporation ("City") and KOA Corporation a California corporation ("Consultant"). 1. Consultant's Services. Subject to the terms and conditions set forth in this Agreement Consultant shall provide to the reasonable satisfaction of the City the Local Roadway Safety Plan in accordance with the City issued RFP and consultant proposal set forth in the attached as Exhibit "A", which is incorporated herein by this reference. As a material inducement to the City to enter into this Agreement, Consultant represents and warrants that it has thoroughly investigated the work and fully understands the difficulties and restrictions in performing the work. Consultant represents that it is fully qualified to perform such consulting services by virtue of its experience and the training, education and expertise of its principals and employees. 2. Term of Agreement. This Agreement shall take effect July 21, 2020, and shall continue for six months to end on June 30, 2021, unless otherwise extended by mutual consent until the work herein is completed unless earlier terminated pursuant to the provisions herein. 3. Compensation. City agrees to compensate Consultant for each service which Consultant performs to the satisfaction of City in compliance with the scope of services set forth in Exhibit "A". Payment will be made only after submission of proper invoices in the form specified by City. Total payment to Consultant pursuant to this Agreement shall not exceed Seventy-nine thousand and eight hundred and seventy dollars ($79,870) without the prior written consent of the City. The above not to exceed amount shall include all costs, including, but not limited to, all clerical, administrative, overhead, telephone, travel and all related expenses. 4. Payment. A. As scheduled services are completed, Consultant shall submit to City an invoice for the services completed, authorized expenses and authorized extra work actually performed or incurred. B. All such invoices shall state the basis for the amount invoiced, including services completed, the number of hours spent and any extra work performed. C. City will pay Consultant the amount properly invoiced within 35 days of receipt, but may withhold 30% of any invoice until all work is completed, which sum shall be paid within 35 days of completion of the work and receipt of all deliverables. 3.5.a Packet Pg. 56 2 Professional Services - LRSP 1292538.1 D. Payment shall constitute payment in full for all services, authorized costs and authorized extra work covered by that invoice. 5. Change Orders. No payment for extra services caused by a change in the scope or complexity of work, or for any other reason, shall be made unless and until such extra services and a price therefore have been previously authorized in writing and approved by the City Manager or his designee as an amendment to this Agreement. The amendment shall set forth the changes of work, extension of time, if any, and adjustment of the fee to be paid by City to Consultant. 6. Priority of Documents. In the event of any inconsistency between the provisions of this Agreement and any attached exhibits, the provisions of this Agreement shall control. 7. Status as Independent Contractor. A. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of City. B. Consultant agrees to pay all required taxes on amounts paid to Consultant under this Agreement, and to indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. In the event that City is audited by any Federal or State agency regarding the independent contractor status of Consultant and the audit in any way fails to sustain the validity of a wholly independent contractor relationship between City and Consultant, then Consultant agrees to reimburse City for all costs, including accounting and attorney's fees, arising out of such audit and any appeals relating thereto. C. Consultant shall fully comply with Workers' Compensation laws regarding Consultant and Consultant's employees. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to com ply with applicable Worker's Compensation laws. D. Consultant shall, at Consultant’s sole cost and expense fully secure and comply with all federal, state and local governmental permit or licensing requirements, including but not limited to the City of Diamond Bar, South Coast Air Quality Management District, and California Air Resources Board. E. In addition to any other remedies it may have, City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any 3.5.a Packet Pg. 57 3 Professional Services - LRSP 1292538.1 amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification required by this Agreement or for any amount or penalty levied against the City for Consultant’s failure to comply with this Section. 8. Standard of Performance. Consultant shall perform all work at the standard of care and skill ordinarily exercised by members of the profession under similar conditions and represents that it and any subcontractors it may engage, possess any and all licenses which are required to perform the work contemplated by this Agreement and shall maintain all appropriate licenses during the performance of the work. 9. Indemnification. To the maximum extent permitted by Civil Code section 2782.8, Consultant shall indemnify and hold harmless City, its officers, officials, employees and volunteers ("Indemnitees") from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys' fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with: (1) Any and all claims under Worker’s Compensation acts and other employee benefit acts with respect to Consultant’s employees or Consultant’s contractors; (2) Any and all claims arising out of Consultant's performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement. Should City in its sole discretion find Consultant’s legal counsel unacceptable, then Cons ultant shall reimburse the City its costs of defense, including without limitation reasonable attorneys' fees, expert fees and all other costs and fees of litigation. The Consultant shall promptly pay any final judgment rendered against the Indemnitees , including, without limitation, incidental and consequential damages, court cost of reasonable attorney fees, litigation expenses and fees of expert witnesses incu rred in connection therewith that arises, in whole or in part, from the consultant, its employe es, or sub-consultant’s performance of services under this agreement. Except for the Indemnitees, this Agreement shall not be construed to extend to any third-party indemnification rights of any kind; and (3) Any and all claims for loss, injury to or death of persons or damage to property caused by the negligent professional act or omission in the performance of professional services pursuant to this Agreement. (4) The Consultant's obligations to indemnify, defend and hold harmless the City shall survive termination of this Agreement. 10. Insurance. A. Consultant shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, with an insurance company authorized to do business in the State of California and approved by the City the following insurance: (1) a policy or policies of broad-form comprehensive general liability insurance written on an occurrence basis with minimum limits of $1,000,000.00 combined 3.5.a Packet Pg. 58 4 Professional Services - LRSP 1292538.1 single limit coverage against any injury, death, loss or damage as a result of wrongful or negligent acts by Consultant, its officers, employees, agents, and independent contractors in performance of services under this Agreement; (2) property damage insurance with a minimum limit of $500,000.00 per occurrence; (3) automotive liability insurance written on an occurrence basis covering all owned, non-owned and hired automobiles, with minimum combined single limits coverage of $1,000,000.00; (4) Worker's Compensation insurance when required by law, with a minimum limit of $500,000.00 or the amount required by law, whichever is greater; and (5) Professional liability insurance covering errors and omissions arising out of the performance of this Agreement with a combined single limit of $1,000,000. If such insurance is on a claim made basis, Consultant agrees to keep such insur ance in full force and effect for at least five years after termination or date of completion of this Agreement. B. The City, its officers, employees, agents, and volunteers shall be named as additional insureds on the policies as to comprehensive gene ral liability, property damage, and automotive liability. The policies as to comprehensive general liability, property damage, and automobile liability shall provide that they are primary, and that any insurance maintained by the City shall be excess insurance only. C. All insurance policies shall provide that the insurance coverage shall not be non-renewed, canceled, reduced, or otherwise modified (except through the addition of additional insureds to the policy) by the insurance carrier without the in surance carrier giving City ten (10) day's prior written notice thereof. Consultant agrees that it will not cancel, reduce or otherwise modify the insurance coverage and in the event of any of the same by the insurer to immediately notify the City. D. All policies of insurance shall cover the obligations of Consultant pursuant to the terms of this Agreement and except for professional liability insurance, shall be issued by an insurance company which is authorized to do business in the State of California or which is approved in writing by the City; and shall be placed have a current A.M. Best's rating of no less than A-, VII. In the case of professional liability insurance, such coverage shall be issued by companies either licensed or admitted to conduct business in the State of California so long as such insurers possesses the aforementioned Best's rating. E. Consultant shall submit to City (1) insurance certificates indicating compliance with the minimum insurance requirements above, and (2) insurance policy endorsements or a copy of the insurance policy evidencing the additional insured requirements in this Agreement, in a form acceptable to the City. 3.5.a Packet Pg. 59 5 Professional Services - LRSP 1292538.1 F. Self-Insured Retention/Deductibles. All policies required by this Agreement shall allow City, as additional insured, to satisfy the self-insured retention (“SIR”) and/or deductible of the policy in lieu of the Consultant (as the named insured) should Consultant fail to pay the SIR or deductible requirements. The amount of the SIR or deductible shall be subject to the approval of the City. Consultant understands and agrees that satisfaction of this requirement is an express condition precedent to the effectiveness of this Agreement. Failure by Consultant as primary insured to pay its SIR or deductible constitutes a material breach of this Agreement. Should City pay the SIR or deductible on Consultant’s due to such failure in order to secure defense and indemnification as an additional insured under the policy, City may include such amounts as damages in any action against Consultant for breach of this Agreement in addition to any other damages incurred by City due to the breach. G. Subrogation. With respect to any Workers' Compensation Insurance or Employer's Liability Insurance, the insurer shall waive all rights of subrogation and contribution it may have against the Indemnitees. H. Failure to Maintain Insurance. If Contractor f ails to keep the insurance required under this Agreement in full force and effect, City may take out the necessary insurance and any premiums paid, plus 10% administrative overhead, shall be paid by Consultant, which amounts may be deducted from any payments due Consultant. I. Consultant shall include all subcontractors, if any, as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor to the City for review and approval. All insurance for subcontractors shall be subject to all of the requirements stated herein. 11. Confidentiality. Consultant in the course of its duties may have access to confidential data of City, private individuals, or employees of the City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this section shall survive the termination of this Agreement. Notwithstanding the foregoing, to the extent Consultant prepares reports of a proprietary nature specifically for and in connection with certain projects, the City shall not, except with Consultant's prior written consent, use the same for other unrelated projects. 12. Ownership of Materials. Except as specifically provided in this Agreement, all materials provided by Consultant in the performance of this Agreement shall be and remain the property of City without restriction or limitation upon its use or dissemination by City. Consultant may, however, make and retain such copies of said documents and materials as Consultant may desire. 13. Maintenance and Inspection of Records. In accordance with generally accepted accounting principles, Consultant and its subcontractors shall maintain 3.5.a Packet Pg. 60 6 Professional Services - LRSP 1292538.1 reasonably full and complete books, documents, papers, accounting records, and other information (collectively, the “records”) pertaining to the costs of and completion of services performed under this Agreement. The City and any of their aut horized representatives shall have access to and the right to audit and reproduce any of Consultant's records regarding the services provided under this Agreement. Consultant shall maintain all such records for a period of at least three (3) years after t ermination or completion of this Agreement. Consultant agrees to make available all such records for inspection or audit at its offices during normal business hours and upon three (3) days' notice from the City, and copies thereof shall be furnished if requested. 14. Conflict of Interest. A. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by Consultant under this Agreement, or which would conflict in any manner with the performance of its services hereunder. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest which would conflict in any manner with the performance of its services pursuant to this Agreement. B. Consultant covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of hardware o r software to City as a result of the performance of this Agreement. Consultant's covenant under this section shall survive the termination of this Agreement. 15. Termination. The parties may terminate this Agreement with or without cause upon thirty (30) days' written notice. The effective date of termination shall be upon the date specified in the notice of termination, or, in the event no date is specified, upon the thirtieth (30th) day following delivery of the notice. In the event of such terminat ion, City agrees to pay Consultant for services satisfactorily rendered prior to the effective date of termination. Immediately upon receiving written notice of termination, Consultant shall discontinue performing services, unless the notice provides otherwise, except those services reasonably necessary to effectuate the termination. The City shall be not liable for any claim of lost profits. 16. Personnel/Designated Person. Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services under this Agreement. All of the services required under this Agreement will be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. 17. Non-Discrimination and Equal Employment Opportunity. A. Consultant shall not discriminate as to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation, in the performance of its services and duties pursuant to 3.5.a Packet Pg. 61 7 Professional Services - LRSP 1292538.1 this Agreement, and will comply with all rules and regulations of City relating thereto. Such nondiscrimination shall include but not be limited to the following: employment, upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. B. Consultant will, in all solicitations or advertisements for employees placed by or on behalf of Consultant state either that it is an equal opportunity employer or that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. C. Consultant will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement except contracts or subcontracts for standard commercial supplies or raw materials. 18. Time of Completion. Consultant agrees to commence the work provided for in this Agreement within (5) days of being notified by the City to proceed and to diligently prosecute completion of the work or as may otherwise be agreed to by and between the Project Manager and the Consultant. 19. Time Is of the Essence. Time is of the essence in this Agreement. Consultant shall do all things necessary and incidental to the prosecution of Consultant's work. 20. Delays and Extensions of Time. Consultant's sole remedy for delays outside its control shall be an extension of time. No matter what the cause of the delay, Consultant must document any delay and request an extension of time in writing at the time of the delay to the satisfaction of City. Any extensions granted shall be limited to the length of the delay outside Consultant’s control. If Consultant believes that delays caused by the City will cause it to incur additional costs, it must specify, in writing, why the delay has caused additional costs to be incurred and the exact amount of such cost within 10 days of the time the delay occurs. No additional costs can be paid that exceed the not to exceed amount absent a written amendment to this Agreement. In no event shall the Consultant be entitled to any claim for lost profits due to any delay, whether caused by the City or due to some other cause. 21. Assignment. Consultant shall not assign or transfer any interest in this Agreement nor the performance of any of Consultant's obligations hereunder, without the prior written consent of City, and any attempt by Consultant to so assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect. 22. Compliance with Laws. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state, and local governments. 23. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a 3.5.a Packet Pg. 62 8 Professional Services - LRSP 1292538.1 waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant co nstitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default. 24. Attorney's Fees. In the event that either party to this Agreement shall commence any legal or equitable action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees and costs, including costs of expert witnesses and consultants. 25. Mediation. Any dispute or controversy arising under this Agreement, or in connection with any of the terms and conditions hereof, which cannot be resolved by the parties, may be referred by the parties hereto for mediation. A third party, neutral mediation service shall be selected, as agreed upon by the parties and the costs and expenses thereof shall be borne equally by the parties hereto. The parties agree to utilize their good faith efforts to resolve any such dispute or controversy so submitted to mediation. It is specifically understood and agreed by the parties hereto that mutual good faith efforts to resolve the same any dispute or controversy as provided herein, shall be a condition precedent to the institution of any action or proceeding, whether at law o r in equity with respect to any such dispute or controversy. 26. Notices. Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during regular business hours or by facsimile before or during regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section. “CONSULTANT” “CITY” KOA Corporation City of Diamond Bar 1100 Corporate Center Drive, 21810 Copley Drive Suite 201 Diamond Bar, CA 91765-4178 Monterey Park, CA 91754 Attn.: David G. Liu, Dir. of Public Attn.: Mr. Jimmy Lin, Management Executive Works/City Engineer Phone: (323) 260-4703 Phone: 909-839-7038 E-Mail: jlin@koacorp.com E-mail: dliu@diamondbarca.gov 27. Governing Law. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of California. 28. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument. 3.5.a Packet Pg. 63 9 Professional Services - LRSP 1292538.1 29. Entire Agreement. This Agreement, and any other documents incorporated herein by reference, represent the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement. Amendments on behalf of the City will only be valid if signed by a person duly authorized to do so under the City's Purchasing Ordinance. [SIGNATURE PAGE FOLLOWS] 3.5.a Packet Pg. 64 3.5.a Packet Pg. 65 11 Professional Services - LRSP 1292538.1 EXHIBIT “A” Scope of Service and Fee Proposal 3.5.a Packet Pg. 66 9 CITY OF DIAMOND BAR PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN (LRSP) SECTION 5 | SCOPE OF SERVICES - PROJECT UNDERSTANDING PROJECT UNDERSTANDING Caltrans announced a Call for LRSP Applications on October 8, 2019. This is Caltrans’ first call for projects for LRSP development; previous calls were made for the Systemic Safety Analysis Report Program (SSARP), a program that the LRSP replaces. Although no guidelines have been released for preparing an LRSP, Caltrans has explained that the LRSP shares a similar framework to and aspects of the California Statewide Strategic Highway Safety Plan (SHSP), as each focuses on the 4 “E’s” of transportation safety - Engineering, Enforcement, Education, and Emergency Medical Services (EMS). An LRSP systematically identifies and analyzes safety problems and recommends safety improvements. Preparing an LRSP facilitates collaboration and the development of partnerships with local agencies and private sector stakeholders. The results are summarized with a prioritized list of improvements and actions. The LRSP offers a proactive approach to addressing safety needs, demonstrating agency responsiveness to safety challenges. The procedure to complete the LRSP is demonstrated in Figure 1. KOA will identify prominent collision patterns and emphasis areas for safety issues based on collision data analysis. Engineering solutions and non-engineering measures under the four “E’s” will be developed simultaneously and summarized in a safety countermeasures technical memorandum. KOA will then develop a list of prioritized safety projects and recommend competitive projects for HSIP grant applications. The LRSP will include all of the required content listed in the RFP. Figure 1: Diamond Bar LRSP Steps and Procedure Caltrans highly recommends an LRSP for HSIP Cycle 10 applications and requires it for HSIP Cycle 11 applications. The upcoming HSIP Cycle 10 will open in April 2020 and will be due the following August. KOA will help the City to identify competitive safety improvement project(s) with a high benefit-cost ratio for the upcoming HSIP cycles. SCOPE OF SERVICES AND METHODOLOGIES TASK 0 – PROJECT MANAGEMENT TASK 0.1 – PROJECT COORDINATION AND ADMINISTRATION Ms. Mengzhao Hu, our proposed Project Manager, will oversee the day-to-day operations of the project. She will serve as the point of contact with City Staff for the duration of the project. Her project management will focus on three basic elements: schedule, budget, and scope. Ms. Hu will maintain continuous communication with the City and will ensure that high-quality products are submitted to the City for review. Project costs are effectively controlled through a thorough review of the schedule at the start of the project and close management of staff hours allocated to each task. Monthly progress reports will be provided by KOA with the submission of each invoice. A draft project schedule is provided in Section 6 on page 22. The scheduling details are subject to change, but we expect the project to be completed within eight months. Ms. Hu will be responsible for ensuring that all project tasks are being completed in a timely and professional manner. 3.5.a Packet Pg. 67 10 CITY OF DIAMOND BAR PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN (LRSP) SECTION 5 | SCOPE OF SERVICES - SCOPE OF SERVICES AND METHODOLOGIES TASK 0.2 – PROJECT MEETINGS KOA hopes to attend up to four, in-person meetings for this project: • Project kickoff meeting • Three project progress meetings KOA will attend a meeting with City staff to kick off this project. The primary purposes of the meeting will be to: • Clarify the objectives of the study and discuss the desired outcomes for this work • Discuss the Vision and Goal of the LRSP • Identify stakeholders • Review the work plan and schedule The first project progress meeting will be held after the City staff reviews the collision data analysis technical memorandum. During the meeting, KOA will present the identified collision patterns and transportation safety emphasis areas, as well as brainstorm safety measures with the City staff. The second project progress meeting will be held after the City reviews the engineering-solutions and non- engineering-solutions technical memorandum. The prioritization of the countermeasures and actions will be discussed during this meeting. The third project progress meeting will be held after the City staff reviews the Draft Local Roadway Safety Plan. The KOA Team will discuss all the received comments from the City Staff and how to address them. KOA will provide a meeting agenda to the City’s project manager at least one business day prior to each meeting. Meeting minutes will be submitted to the City for review within two business days after each meeting. Task 0 Deliverables • Meeting agenda and minutes • Refined project schedule TASK 1 – IDENTIFY WORKING GROUP Typical stakeholders for an LRSP project include the City’s public works department, County Sheriff, County Fire Department, transit operator (Foothill Transit), the school district, crossing guards, nearby Type I and Type II trauma centers, a local Emergency Medical Service (EMS) agency, the City’s transportation and parking commission, the City Council, and local advocacy groups for pedestrians and bicyclists. KOA will work with City to develop a list of stakeholders and identify the contact person of each party. TASK 1.1 MEETING WITH LAW ENFORCEMENT Through our LRSP and SSAR projects, KOA has found it very beneficial to learn the perspectives of the law enforcement officers that work in the City on a daily basis. Therefore, we propose to have one meeting with the Los Angeles County Sheriff’s Department to discuss traffic safety issues after the initial collision data analysis is completed. TASK 1.2 – WORKING GROUP MEETINGS KOA proposes to have two working group meetings. The first working group meeting will take place after KOA has drafted the Vision and Goals, and has conducted collision data analysis. KOA will seek public input on the following topics: • The Vision and Goals of the Diamond Bar LRSP • Major transportation safety issues • Desired safety improvements The second working group meeting will be held after KOA has compiled a list of safety countermeasures and action items. The participants will have a chance to provide their feedback through this meeting. The working group meetings will be held at a venue designated by the City. KOA will provide display boards of collision maps, field photos, concept design diagrams, LRSP frameworks, and other items to facilitate conversations. Our workshop leader, Dr. Allan Crawford, will lead discussion with the stakeholders after a presentation by KOA’s Project Manager. Dr. Crawford has extensive public speaking and engagement experience with high-profile and challenging projects including leading the outreach efforts for the Pasadena Bicycle Action Plan project, Irvine Strategic Active Transportation Project (see Figure 2 on the next page), and many others. 3.5.a Packet Pg. 68 11 CITY OF DIAMOND BAR PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN (LRSP) SECTION 5 | SCOPE OF SERVICES - SCOPE OF SERVICES AND METHODOLOGIES Figure 2: KOA hosted a stakeholder meeting for the Irvine Strategic Active Transportation Plan project TASK 1.3 – ONLINE MAPPING TOOL KOA will develop a project-specific online mapping tool to collect location-specific insights. The participants will be able to pinpoint the locations where they have experienced transportation safety issues, provide comments, and upload photos. The mapping tool will be accessible through a URL link that can be posted on social media and in local newspapers. A QR code of the link will be generated and placed on the event flyer for the working group meetings and on a project fact sheet that can be posted at public facilities such as City Hall, libraries, senior centers, etc. Figure 3 below is a screenshot of the mapping tool KOA created for the City of Thousand Oaks LRSP. Figure 3: Thousand Oaks LRSP Online Mapping Tool 3.5.a Packet Pg. 69 12 CITY OF DIAMOND BAR PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN (LRSP) SECTION 5 | SCOPE OF SERVICES - SCOPE OF SERVICES AND METHODOLOGIES Task 1 Deliverables • Meeting flyers, display boards, project factsheets, and PowerPoint slides for the two working group meetings • ArcGIS Online Mapping Tool • Log of public comments/inputs TASK 2 – ANALYZE SAFETY DATA TASK 2.1 – COLLISION DATA ANALYSIS KOA will identify transportation safety emphasis areas through a combined use of collision data analysis and stakeholder engagement. As shown in Figure 4 below, transportation safety includes three aspects: risky behaviors, vulnerable users, and infrastructure. Figure 4: Emphasis Areas for a LRSP KOA will conduct an in-depth analysis of the Statewide Integrated Traffic Records System (SWITRS) data for the past five years, which is more inclusive than the Transportation Injury Mapping System (TIMS) data. SWITRS includes collisions of all severity levels, including property damage only collisions, while TIMS only collects collisions that result in injuries and fatalities. KOA will request collision reports from the police, which provide in-depth information related to driving behavior and other information that is not included or not as detailed in the SWITRS data. TIMS data will be used for comparing the collision pattern of Diamond Bar with that of Los Angeles County, which will help to identify transportation safety emphasis areas. KOA conducted an initial collision analysis for the City of Diamond Bar by using five years (2014 to 2018) of SWITRS data. A total of 2,034 collisions occurred within the City, excluding those on state highways. The VBA-enabled Excel Workbook Collision Analysis Tool developed by KOA in house (see Figure 5 on the next page) gives us a quick snapshot of the recent crash history of the City. 3.5.a Packet Pg. 70 13 CITY OF DIAMOND BAR PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN (LRSP) SECTION 5 | SCOPE OF SERVICES - SCOPE OF SERVICES AND METHODOLOGIES Figure 5: Collision Analysis Tool Homepage of the VBA-enabled Excel Workbook Initial findings from analysis of the collision data include: • Fatal and severe (KSI) collisions accounted for 1.2 percent of all the collisions. • Motor vehicles involved with bicyclists and/or pedestrians accounted for 2.4 percent of all the collisions. • The three most common collision types were rear-end (31%), sideswipe (23%), and broadside (21%). • The most common Primary Collision Factors (PCFs) for all the collisions were unsafe speed (21%), improper turning (19%), and automobile right-of-way (16%). Task 2 Deliverables • Excel spreadsheets and ArcGIS shapefiles of SWITRS data in the past five years • Technical memorandum of collision data analysis TASK 3 – DEVELOP COUNTERMEASURES KOA will develop both engineering and non-engineering solutions to address the identified collision patterns and safety emphasis areas based on collision data analysis and stakeholder input. The countermeasures will be refined based on the feedback from the stakeholder working group as discussed under Task 1.2. TASK 3.1 – FIELD REVIEW Field review is essential for correctly interpreting the observed crash patterns. KOA will examine the characteristics that could be responsible for collisions at high-risk roadway segments and intersections. Table 1 on the next page shows KOA’s fieldwork checklist for a signalized intersection. KOA will observe and collect the following information: • Conduct observations of vehicle, pedestrian, bicycle, truck, and bus behaviors; • Measure roadway width and sight distance for areas with visibility issues, and evaluate access control; • Note physical and operational characteristics at locations where safety features could be enhanced. 3.5.a Packet Pg. 71 14 CITY OF DIAMOND BAR PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN (LRSP) SECTION 5 | SCOPE OF SERVICES - SCOPE OF SERVICES AND METHODOLOGIES Table 1: KOA Safety Field Visit Check List – Signalized Intersections Signal Geometry and Roadway Conditions Protective Barriers Lenses Size: 8 Inch vs. 12 Inch Lane Geometry Raised Medians Installation: Mast Arm vs. Pedestal- Mounted Lane Width Delineators Signal Backplates Degree of Curve Users’ Behavior Pedestrian Countdown Driveways Speeding Pedestrian Push Buttons Sidewalks Violating Turning Restrictions Emergency Vehicle Pre-Emption Systems Curb Ramps Bicycling on Wrong Side of the Roadway Left-Turn/Right-Turn Phasing Pavement Conditions Jay-Walking Signage Striping and Pavement Markings Traffic Operation Street Names Directional Arrows Queuing Turning Restrictions Pedestrian Crossing Traffic Volumes and Patterns Signal Ahead Travel Lane Red Curbs and Parking Restriction Other Signs Bike Lane Sight Distance Safety Lighting Painted Medians Bus Stop Landing Area and Amenities TASK 3.2 – ENGINEERING SAFETY COUNTERMEASURES Based on the collision analysis and roadway field investigation, KOA will identify top risks and contributing factors to the prominent collision patterns in Diamond Bar. KOA will follow the guidance in Section 4 of the Local Road Safety Manual (LRSM) to identify countermeasures for addressing safety issues. Other sources we have used for similar projects include: • Federal Highway Administration (HWA) Proven Countermeasures • American Association of State Highway Transportation Officials (AASHTO) Highway Safety Manual • Crash Modification Factor (CMF) Clearinghouse • Various reports published by the National Cooperative Highway Research Program (NCHRP) As we complete this step, KOA will focus on finding the ideal balance between collision analysis on a systemic basis and addressing high-crash locations. The safety countermeasures will incorporate continual feedback from City staff and reflect patterns of existing facilities in the study area. The countermeasures will be categorized by facility type: • Roadway Segment • Signalized Intersection • Non-Signalized Intersection The following factors will be considered for prioritizing countermeasures: • Crash Modification Factor (CMF) applicability • Estimates of crash reduction benefits based on EDPO values by collision severity • Equitably mitigating safety issues for all modes of transportation • Applicability to multiple locations • Consistency with City’s standard practices • Implementation cost • Right-of-way requirements • Federal funding eligibility • Public acceptance TASK 3.3 – NON-ENGINEERING SAFETY MEASURES Improving transportation safety in a city involves more than just infrastructure improvements. KOA will develop ongoing Enforcement, Education, and Emergency Medical Service (EMS) programs to address transportation safety issues that cannot be resolved by engineering solutions alone. KOA will review, summarize, evaluate, and update 3.5.a Packet Pg. 72 15 CITY OF DIAMOND BAR PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN (LRSP) SECTION 5 | SCOPE OF SERVICES - SCOPE OF SERVICES AND METHODOLOGIES existing policies and programs, and add new applicable action items. KOA will also provide a matrix to summarize the funding sources for implementing the proposed safety campaigns and programs. KOA will develop education and encouragement strategies to raise transportation safety awareness among different transportation users (students, seniors, and working adults). Here are some example programs and campaigns to promote safety among certain groups of roadway users: • Young age students: walking school bus, bike trains, safe routes to school; • Bicyclists: cycling skills education; • Motorists: safety handbook, incorporating safety tips into traffic school curriculum. KOA will propose strategies to enhance traffic law enforcement that might include but are not limited to: • Implement High Visibility Enforcement (HVE) at locations prone to improper turning, jay-walking, bicycling on the wrong side of the street, etc.; • Increase speed limit enforcement, especially within school zones; • Targeted enforcement of DUI. Emergency Medical Services (EMS) help reduce crash related injuries and fatalities through high-quality medical care at the scene and during transport to a trauma center. KOA will work with the City’s police department to develop EMS strategies to: • Detect a crash quickly; • Determine the location and nature of the injuries accurately; • Improve access to information to enable interoperability of communications systems between all responders to crash sites; • Transport the injured parties to the appropriate type of trauma center to address the injuries sustained. TASK 3.4 – LIST OF PRIORITIZED SAFETY IMPROVEMENTS KOA will deliver a master list of safety projects and their scopes based on the findings and feedback from the first stakeholder working group meeting. Feedback from the City on the preliminary safety project scopes will ensure that they reflect the City’s fiscal constraints. KOA will prioritize the safety projects based on the following considerations: 1. Benefit-Cost Ratio (for engineering solutions only) 2. Public acceptance and preference 3. City’s CIP and funding availability/restriction 4. Funding availability for non-engineering programs and campaigns 5. Potential for HSIP award 6. Other factors recommended by City Staff KOA understands that City Staff might utilize the project list for further analysis and consideration such as when applying for HSIP grants. KOA will help the City to identify competitive safety projects with high benefit-cost (B/C) ratio based on the following considerations: • The minimum project cost and B/C ratio requirements, which were $200,000 and 3.5, respectively, for HSIP Cycle 9. • The average B/C ratio of the approved projects (in past HSIP cycles this was 12.3). Task 3 Deliverables • Engineering Safety Countermeasure Technical Memorandum • Non-Engineering Safety Measure Technical Memorandum 3.5.a Packet Pg. 73 16 CITY OF DIAMOND BAR PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN (LRSP) SECTION 5 | SCOPE OF SERVICES - SCOPE OF SERVICES AND METHODOLOGIES TASK 4 – DEVELOPMENT OF FINAL LRSP TASK 4.1 – EVALUATION AND IMPLEMENTATION Evaluation is critical to understand what is working and should continue and what is not working and should be modified or discontinued. KOA will develop performance measures that track and analyze the effectiveness of policies, programs, infrastructure improvements, and events. KOA will also lay out a roadmap to implement, monitor, and update the LRSP, identifying responsible parties and actions to carry out the plan. TASK 4.2 – DRAFT LRSP The methodology, findings, and proposed recommendations from previous tasks will be incorporated into the draft LRSP and submitted to the City for review. The report will include: • Introduction; • Purpose, Goal, and Objective of the LRSP; • Findings from Crash Analysis; • Outcome of the Community Workshops; • Proposed engineering safety countermeasures; • A list of prioritized safety projects; • Proposed strategies, programs, and campaigns to improve transportation safety under the non-engineering “E’s”, with funding resources; • Procedure to implement and evaluate the effectiveness of the LRSP. KOA will have one meeting with the City’s project manager to review the Draft LRSP. The comments from the City staff will be incorporated into the Final LRSP. Task 4 Deliverables • Draft Local Roadway Safety Plan (LRSP) • Five (5) bound hard copies of the Final Local Roadway Safety Plan (LRSP) • Electronic Files of the Final Local Roadway Safety Plan in Microsoft Word and PDF Format 3.5.a Packet Pg. 74 17 CITY OF DIAMOND BAR PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN (LRSP) SECTION 5 | SCOPE OF SERVICES - QA/QC QA/QC PLAN A QA/QC program is essential for providing a sound LRSP that can be quickly approved by the City, with minimal comments or re-work. KOA has an established QA/QC program in place and is familiar with Caltrans QC checklists and other similar checklists used by other agencies. The customized QA/QC plan that we will prepare for this project will include the relevant elements of KOA’s standards that have been developed over the years with incorporation of client feedback, industry standards, and lessons learned from our on-going LRSP and SSAR projects. For this project, we believe that the basic steps to ensure the quality of our work are: 1. Understand the City’s expectations for each major task and critical deliverable; 2. Task Leaders shall identify and communicate all the critical methodologies of each task with supporting staff before work starts; 3. Communicate with the City and seek consensus/approval whenever necessary; 4. After five percent of each task is completed, the Task Lead shall check whether the work is done appropriately according to the agreed methodology, evaluate whether the work is done efficiently in a time frame aligned with the allocated hours, and adjust methodology if necessary; 5. After each task is 100 percent completed, the Task Leader or the Project Manager shall conduct spot checks on the deliverables and evaluate whether the results/conclusions are reasonable based on our experience with similar projects; 6. The QA/QC Manager will then do a final review of each major deliverable. Prior to all submittals, each technical memorandum and the LRSP report will be reviewed and signed off by the Task Lead, Project Manager, and QA/QC Manager. The reviewer’s sign-off sheet will be included in the project files for easy retrieval, should the City require proof of review. Project quality assurance and control is an essential component of management of the project. As the main point of contact, Ms. Mengzhao Hu, KOA’s designated Project Manager, will take full responsibility of all the deliverables for this project. We have designated Mr. Walter Okitsu as the QA/QC Manager for this project to provide a second independent review. Mr. Okitsu will be responsible to check and ensure: • That our LRSP complies with Caltrans requirements; • That the key mythologies utilized are systemic; • Reasonableness of the collision data analysis results/conclusions; • That the proposed safety projects are constructible; • Reasonableness of the cost estimates. 3.5.a Packet Pg. 75 18 CITY OF DIAMOND BAR PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN (LRSP) SECTION 6 | SERVICE SCHEDULE Week 12345678910111213141516171819202122232425262728293031323334Date 25-May1-Jun8-Jun15-Jun22-Jun29-Jun6-Jul13-Jul20-Jul27-Jul3-Aug10-Aug17-Aug24-Aug31-Aug7-Sep14-Sep21-Sep28-Sep5-Oct12-Oct19-Oct26-Oct2-Nov9-Nov16-Nov23-Nov30-Nov7-Dec14-Dec21-Dec28-Dec4-Jan11-JanTask 0 – Project ManagementTask 0.1 – Project Coordination and AdministrationTask 0.2 – Project MeetingsTask 1 – Identify Working GroupTask 1.1 Meeting with Law EnforcementTask 1.2 Working Group MeetingsTask 1.3 Online Mapping ToolTask 2 – Analyze Safety DataTask 2.1 Collision Data AnalysisTask 3 – Develop CountermeasuresTask 3.1 Field ReviewTask 3.2 Engineering Safety CountermeasuresTask 3.3 Non-engineering Safety MeasuresTask 3.4 List of Prioritized Safety ImprovementsTask 4 – Draft Local Roadway Safety PlanTask 4.1 Evaluation and ImplementationTask 4.2 Draft LRSPKick-off MeetingMeeting with Law EnforcementKOA WorkProject Progress MeetingWorking Group MeetingCity Review20203.5.a Packet Pg. 76 4 CITY OF DIAMOND BAR FEE PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN SECTION 1 | KOA FEE SCHEDULE HoursCostHoursCostHoursCostHours CostHours CostHoursCostHoursCost0Project ManagementTask 0.1 – Project Coordination and Administration8$1,5128$1,512Task 0.2 – Project Meetings6$1,42116$3,0243$5678$1,050$20033$6,262Subtotal6$1,42124$4,5363$5678$1,0500$00$0$20041$7,7741Identify Working GroupTask 1.1 Meeting with Law Enforcement3$7105$9454$42012$2,075Task 1.2 Working Group Meetings6$1,42116$3,0244$52532$3,360$20058$8,530Task 1.3 Online Mapping Tool2$3782$26327$2,83531$3,476Subtotal9$2,13123$4,3470$06$7880$063$6,615$200101$14,0802Analyze Safety DataTask 2.1 Collision Data Analysis1$2379$1,7019$1,181100$10,500119$13,619Subtotal1$2379$1,7010$09$1,1810$0100$10,500$0119$13,6193Develop CountermeasuresTask 3.1 Field Review9$1,7019$1,1819$1,1819$945$30036$5,309Task 3.2 Engineering Safety Countermeasures8$1,8944$7568$1,5129$1,1819$1,18150$5,25088$11,775Task 3.3 Non-engineering Safety Measures3$5674$52550$5,25057$6,342Task 3.4 List of Prioritized Safety Improvements2$3789$1,18124$2,52035$4,079Subtotal8$1,8949$1,70117$3,21331$4,06918$2,363133$13,965$300216$27,5044Final Systemic Safety Analysis ReportTask 4.1 Evaluation and Implementation2$3784$52527$2,83533$3,738Task 4.2 Draft and Final LRSP8$1,89416$3,0244$7569$1,18160$6,30097$13,155Subtotal8$1,89418$3,4024$75613$1,7060$087$9,135$0130$16,89332$7,57683$15,68724$4,53667$8,79418$2,363383$40,215$700607$79,870Task No.Task NameTotalPrincipal$189.00 $236.75 Associate Engineer/PlannerTotal$131.25 $105.00 $189.00 Project Manager/Senior PlannerSenior Associate Planner$131.25 Senior EngineerSenior Associate EngineerCustomary Reimbursable Expenses3.5.a Packet Pg. 77 5 CITY OF DIAMOND BAR FEE PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN SECTION 2 | KOA HOURLY BILLING RATES KOA Corporation 2020 Hourly Billing Rates Professional Services 2020 Rates President/CEO $ 330.75 Principal II $ 278.25 Principal I $ 236.25 Senior Engineer II $ 225.75 Senior Engineer I $ 189.00 Senior Associate Engineer II $ 147.00 Senior Associate Engineer I $ 131.25 Associate Engineer II $ 120.75 Associate Engineer I $ 105.00 Senior Designer II $ 136.50 Senior Designer I $ 120.75 Associate Designer II $ 105.00 Associate Designer I $ 78.75 Senior Planner II $ 225.75 Senior Planner I $ 189.00 Senior Associate Planner II $ 147.00 Senior Associate Planner I $ 131.25 Associate Planner II $ 120.75 Associate Planner I $ 105.00 Administrative Assistant II $ 89.25 Intern $ 57.75 General Provisions: *Project reimbursable expenses are billed at cost. *Project expenses include: Non-commuter automobile mileage ($0.58 per mile) or current IRS rate, postage and special courier expenses, travel expenses, reproduction, subcontractor services and other direct project expenses as requested by the client. *Telephone, equipment, and fax are included in the above hourly costs. *Direct expenses including blacklining, commercial CAD plotting, sub-consultant expense, issuance of specially endorsed insurance certificate, and direct costs are billed at cost plus 5% unless stated otherwise in the proposal. *Annual adjustments in these billing rates of approximately 5% will occur on January 1 of each calendar year. 3.5.a Packet Pg. 78 6 CITY OF DIAMOND BAR FEE PROPOSAL FOR PREPARATION OF LOCAL ROAD SAFETY PLAN SECTION 3 | KOA GENERAL FEE PROVISIONS GENERAL FEE PROVISIONS: • This is a not to exceed man-hour and fee estimate for the services requested in the RFP. • Project reimbursable expenses are billed at cost. • Project expenses include: Non-commuter automobile mileage ($0.58 per mile) or current IRS rate, postage and special courier expenses, travel expenses, reproduction, subcontractor services and other direct project expenses as requested by the client. • Telephone, equipment, and fax are included in the above hourly costs. • Direct expenses including blacklining, commercial CAD plotting, sub-consultant expense, issuance of specially endorsed insurance certificate, and direct costs are billed at cost plus 5% unless stated otherwise in the proposal. • Annual adjustments in these billing rates of approximately 5% will occur on January 1 of each calendar year. 3.5.a Packet Pg. 79 Agenda #: 3.6 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: MEASURE W SAFE, CLEAN WATER PROGRAM-MUNICIPAL PROGRAM TRANSFER AGREEMENT WITH THE LOS ANGELES COUNTY FLOOD CONTROL DISTRICT. STRATEGIC GOAL: Responsible Stewardship of Public Resources RECOMMENDATION: Approve, and authorize the City Manager to sign, the Safe, Clean Water Program - Municipal Program Transfer Agreement No. 2020MP22 with the Los Angeles County Flood Control District. FINANCIAL IMPACT: The City of Diamond Bar will receive approximately $880,000 annually in Measure W Local Return Funds to be used towards safe, clean water projects and programs in accordance with Chapters 16 and 18 of the Los Angeles County Flood Control District Code. This first allocation comes from the annual parcel tax revenue that was collected in calendar year 2019. BACKGROUND/DISCUSSION: On April 5, 2016, the Los Angeles County Board of Supervisors passed a motion directing the Los Angeles County Department of Public Works, in coordination with other County departments, cities, local water agencies, business stakeholders, non - profit organizations, school districts, and other regional stakeholders, to design and develop a Drought Resilience Plan. This led to the creation of the Safe, Clean Water Program (SCWP), a parcel tax known as Measure W, to be implemented by the Los Angeles County Flood Control District (LACFCD). The purpose of the SCWP is to develop/implement projects and programs in order to increase stormwater capture and reduce stormwater and urban runoff pollution , and to be funded by a parcel tax in the amount of two and one-half cents ($0.025) per square foot of impermeable area in Los Angeles County. The SCWP parcel tax measure was placed on the November 6, 2018, election ballot and approved by the voters. 3.6 Packet Pg. 80 Based on the estimated impervious areas in Diamond Bar, the City is to generate approximately $2,200,000 in annual tax revenue which will be allocated in accordance with the SCWP as follows: 50%: Regional Program $1,100,000 40%: Municipal Program $880,000 10%: LACFD Implementation Costs $22,000 The Regional Program has established several Watershed Areas made up of multiple municipalities. Each Watershed Area will collaborate together via a Watershed Area Steering Committee (WASC) to allocate funding for SCWP projects that are regionally significant and impact multiple municipalities. The City of Diamond Bar contributes approximately $1,100,000 towards its watershed group and is eligible to propose regionally significant projects or programs for the WASC’s consideration. The Municipal Program provides approximately $880,000 of local return funds directly to the City of Diamond Bar to implement Projects and Programs related to the SCWP. These funds can be used towards City projects and programs in accordance with Chapters 16 and 18 of the Los Angeles County Flood Control District Code, also known as the SCWP Implementation Ordinance. Generally speaking, the funds must advance the City’s compliance with the State of California’s MS4 Permit, the goal of which is to capture, treat, and re-use stormwater. The City will be able to carry-over uncommitted Municipal Program funds for up to five (5) years. The LACFD will be distributing/disbursing the Municipal Program funds to the municipalities upon execution of the attached Transfer Agreement (Attachment 1). As part of the requirements of the Transfer Agreement, the City will submit an Annual Plan for utilization of the Municipal Program funds. Staff is preparing the Annual Plan for the current fiscal year under which the City will spend the funds on several City projects and programs, including but not limited to: Groundwater Infiltration Improvement, Trail Construction, Median Drainage Improvement, Stormwater Compliance and Monitoring, Sidewalk Sweeping, Community Outreach, and Sustainable Infrastructure. LEGAL REVIEW: The City Attorney has reviewed and approved the agreement as to form. PREPARED BY: 3.6 Packet Pg. 81 REVIEWED BY: Attachments: 1. 3.6.a Attachment 1 - Fund Transfer Agreement 3.6 Packet Pg. 82 Municipal Program Agreement No.: 2020MP22 Page 1 of 23 TRANSFER AGREEMENT BETWEEN THE LOS ANGELES COUNTY FLOOD CONTROL DISTRICT AND DIAMOND BAR AGREEMENT NO. 2020MP22 SAFE, CLEAN WATER PROGRAM – MUNICIPAL PROGRAM This Transfer Agreement, hereinafter referred to as “Agreement,” is entered into as of June 25, 2020 by and between the Los Angeles County Flood Control District, hereinafter referred to as "District," and Diamond Bar, hereinafter referred to as "Municipality." WHEREAS, District, pursuant to the Los Angeles Region Safe, Clean Water (SCW) Program ordinance (Chapter 16 of the Los Angeles County Flood Control District Code) and the SCW Program Implementation Ordinance (Chapter 18 of the Los Angeles County Flood Control District Code), administers the SCW Program for the purpose of funding Projects and Programs to increase stormwater and urban runoff capture and reduce stormwater and urban runoff pollution in the District; WHEREAS, pursuant to Section 16.04.A.2. of the Los Angeles County Flood Control District Code, forty percent (40%) of annual SCW Program tax revenues shall be allocated to Municipalities within the District, in the same proportion as the a mount of revenues collected within each Municipality, to be expended by those cities within the cities' respective jurisdictions and by the County within the unincorporated areas that are within the boundaries of the District, for the implementation, operation and maintenance, and administration of Projects and Programs, in accordance with the criteria and procedures established in this Chapters 16 and 18 of the Los Angeles County Flood Control District Code; WHEREAS, pursuant to Section 16.05.A.1. of the Los Angeles County Flood Control District Code, prior to their receipt of SCW Program funds, Municipalities must enter into an agreement with the District to transfer SCW Program funds; WHEREAS, the County of Los Angeles Board of Supervisors has approved a standard template Agreement, as required by and in accordance with Section 18.09 of the Los Angeles County Flood Control District Code, for the transfer of SCW Program funds to Municipalities. NOW, THEREFORE, in consideration of the promises, mutual representations, covenants and agreements in this Agreement, the District and the Municipality, each binding itself, its successors and assigns, do mutually promise, covenant, and agree as follows: I. DEFINITIONS The definitions set forth in Sections 16.03 and 18.02 of the Los Angeles County Flood Control District Code shall apply to this Agreement. In addition, the following definitions shall also apply: 3.6.a Packet Pg. 83 Municipal Program Agreement No.: 2020MP22 Page 2 of 23 “Agreement” means this Transfer Agreement, including all exhibits and attachments hereto. “Annual Plan” means the plan referred to in Section 18.09.B.5 of the Code that includes the contents specified in Exhibit A. "Code" means the Los Angeles County Flood Control District Code. “Days” means calendar days unless otherwise expressly indicated. “Fiscal Year” means the period of twelve (12) months terminating on June 30 of any year. “Safe Clean Water (SCW) Program Payment” means the Municipality's annual allocation of SCW Program funds as described in Section 16.04.A.2. of the Code disbursed by the District to the Municipality. “Year” means calendar year unless otherwise expressly indicated. II. PARTY CONTACTS The District and the Municipality designate the following individuals as the primary points of contact and communication regarding the Municipal Program and the administration and implementation of this Agreement. Los Angeles County Flood Control District Municipality: Diamond Bar Name: Name: Address: Address: Phone: Phone: Email: Email: Either party to this Agreement may change the individual identified as the primary point of contact above by providing written notice of the change to the other party. III. EXHIBITS INCORPORATED BY REFERENCE The following exhibits to this Agreement, including any amendments and supplements hereto, are hereby incorporated herein and made a part of this Agreement: EXHIBIT A – ANNUAL PLAN CONTENTS EXHIBIT B – GENERAL TERMS AND CONDITIONS EXHIBIT C – NATURE-BASED SOLUTIONS (Best Management Practices) EXHIBIT D – OPERATIONS AND MAINTENANCE GUIDANCE DOCUMENT Fabian Aoun 21810 Copley Drive, Diamond Bar, CA 91765 909-839-7038 faoun@diamondbarca.gov 3.6.a Packet Pg. 84 Municipal Program Agreement No.: 2020MP22 Page 3 of 23 IV. MUNICIPAL PROGRAM IMPLEMENTATION A. The Municipality shall annually prepare and submit to the District, an Annual Plan. The Annual Plan for the 2020-21 Fiscal Year shall be submitted to the District no later than 45-days after the execution of this Agreement by the last party to sign. An Annual Plan for each subsequent Fiscal Year shall be submitted not later than 90-days prior to the start of the Fiscal Year for which the Plan is prepared. B. The Municipality shall utilize the SCW Program Payments in compliance with Chapters 16 and 18 of the Code. C. The Municipality shall comply with the terms and conditions in Exhibits B, C, and D, of this Agreement, and all applicable provisions of Chapters 16 and 18 of the Code, specifically including, without limitation, Section 18.06. V. SCW PROGRAM PAYMENTS TO MUNICIPALITIES A. The District shall disburse the Municipality's SCW Program Payment for the 2020 - 21 Fiscal Year within 45-days of the signed executed Agreement or within 14-days of the District’s receipt of the Annual Plan for 2020 -21 Fiscal Year in compliance with Exhibit A, whichever comes later. The initial disbursement of SCW Program Payments shall include the amount of revenue collected by the District at the time of Agreement execution; any additional funds that are subsequently collected will be disbursed by August 31, 2020. B. SCW Program Payments in subsequent Fiscal Years will generally be available for disbursement by August 31, provided a duly executed transfer agreement is in effect and subject to the Municipality's compliance with the conditions described in paragraph C, below; however the District may, in its discretion, change the date and number of the actual disbursements for any Fiscal Year based on the amount and timing of revenues actually collected by the District. C. For subsequent Fiscal Years, the District shall disburse the Municipality's SCW Program Payment upon satisfaction of the following conditions: (1) the District has received the Annual Progress/Expenditure Report required pursuant to Section 18.06.D of the Code; (2) the District has received Municipality's Annual Plan for that Fiscal Year, and (3) the Municipality has complied with the audit requirements of Section B-6 of Exhibit B. D. Notwithstanding any other provision of this Agreement, no disbursement shall be made at any time or in any manner that is in violation of or in conflict with federal, state, County laws, policies, or regulations. E. All disbursements shall be subject to and b e made in accordance with the terms and conditions in this Agreement and Chapters 16 and 18 of the Code. 3.6.a Packet Pg. 85 Municipal Program Agreement No.: 2020MP22 Page 4 of 23 VI. Term of Agreement This Agreement shall expire at the end of the 2023-24 Fiscal Year. The parties shall thereafter enter into a new agreement based on the most recent standard template agreement approved by the Board. VII. Execution of Agreement This Agreement may be executed simultaneously or in any number of counterparts, including both counterparts that are executed manually on paper and counterparts that are in the form of electronic records and are executed electronically, whether digital o r encrypted, each of which shall be deemed an original and together shall constitute one and the same instrument. The District and the Municipality hereby agree to regard facsimile/electronic representations of original signatures of authorized officers of each party, when appearing in appropriate places on this Agreement and on any addenda or amendments thereto, delivered or sent via facsimile or electronic mail or other electronic means, as legally sufficient evidence that such original signatures have been affixed to this Agreement and any addenda or amendments thereto such that the parties need not follow up facsimile/electronic transmissions of such documents with subsequent (non- facsimile/electronic) transmission of “original” versions of such documents. Further, the District and the Municipality: (i) agree that an electronic signature of any party may be used to authenticate this Agreement or any addenda or amendment thereto, and if used, will have the same force and effect as a manual signature; (ii) acknowledge that if an electronic signature is used, the other party will rely on such signature as binding the party using such signature, and (iii) hereby waive any defenses to the enforcement of the terms of this agreement based on the foregoing forms of signature. 3.6.a Packet Pg. 86 Municipal Program Agreement No.: 2020MP22 Page 5 of 23 IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto. DIAMOND BAR By: ____________________________________ Name: Title: Date: __________________________________ LOS ANGELES COUNTY FLOOD CONTROL DISTRICT: By: ____________________________________ Name: Title: Date: __________________________________ Daniel Fox City Manager 3.6.a Packet Pg. 87 Municipal Program Agreement No.: 2020MP22 Page 6 of 23 EXHIBIT A – ANNUAL PLAN CONTENTS A-1. Description of all projects anticipated to be funded using the SCW Program Payment. Include a discussion of how the projects will result in the achievement of one or more SCW Program Goals, including quantitative targets and corresponding metrics for subsequent reporting of all applicable parameters. A-2. Description of all programs anticipated to be funded using the SCW Program Payment. Include a discussion of how the programs will result in the achievement of one or more SCW Program Goals; including quantitative targets and corresponding metrics for subsequent reporting of all applicable parameters. A-3. Description of all operation and maintenance activities anticipated to be funded using the SCW Program Payment. Include a discussion of how those activities will result in the achievement of one or more SCW Program Goals. Additional operation and maintenance activities, even if funded by other sources, should be referenced to provide an overview of anticipated overall project approach. A-4. Description of the stakeholder and community outreach/engagement activities anticipated to be funded with the SCW Program Payment, including discussion of how local NGOs or CBOs will be involved, if applicable, and if not, why. Additional outreach/engagement activities, even if funded by other sources, should be referenced to provide an overview of anticipated overall project approach. A-5. Description of post-construction monitoring for projects completed using the SCW Program Payment. Additional post-construction monitoring activities, even if funded by other sources, should be referenced to provide an overview of anticipated overall project approach. A-6. Provide the status of any projects that have been awarded (or are seeking award of) Institute for Sustainable Infrastructure (ISI) verification, if applicable. A-7. Provide the budget for the activities described in provisions A1 through A -5 SCW Program Payment. 3.6.a Packet Pg. 88 Municipal Program Agreement No.: 2020MP22 Page 7 of 23 EXHIBIT B – GENERAL TERMS AND CONDITIONS B-1. Accounting and Deposit of Funding Disbursement 1. SCW Program Payments distributed to the Municipality shall be held in a separate interest-bearing account and shall not be combined with other funds. Interest earned from each account shall be used by the Municipality only for eligible expenditures consistent with the requirements of the SCW Program. 2. The Municipality shall not be entitled to interest earned on undisbursed SCW Program Payments; interest earned prior to disbursement is property of the District. 3. The Municipality shall operate in accordance with Generally Accepted Accounting Principles (GAAP). 4. The Municipality shall be strictly accountable for all funds, receipts, and disbursements for their SCW Program Payment. B-2. Acknowledgement of Credit and Signage The Municipality shall include appropriate acknowledgement of credit to the District’s Safe, Clean Water Program for its support when promoting activities funded with SCW Program funds or using any data and/or information developed SCW Program funds. When the SCW Program Payment is used, in whole or in part, for construction of an infrastructure Project, signage shall be posted in a prominent location at Project site(s) or at the Municipality’s headquarters and shall include the Safe, Clean Water Program color logo and the following disclosure statement: “Funding for this project has been provided in full or in part from the Los Angeles County Flood Control District’s Safe, Clean Water Program.” At a minimum the sign shall be 2’ x 3’ in size. The Municipality shall also include in each of its contracts for work under this Agreement a provision that inco rporates the requirements stated within this paragraph. When the SCW Program Payment is used, in whole or in part, for a scientific study, the Municipality shall include the following statement in the study report: “Funding for this study has been provided in full or in part from the Los Angeles County Flood Control District’s Safe, Clean Water Program.” The Municipality shall also include in each of its contracts for work under this Agreement a provision that incorporates the requirements stated within this paragraph. B-3. Acquisition of Real Property - Covenant Any real property acquired in whole or in part with SCW Program funds shall be used for Projects and Programs that are consistent with the SCW Program Goals and with the provisions of Chapter 16 and 18 of the Code. Any Municipality that acquires the fee title to real property using, in whole or in pa rt, SCW Program funds shall record a document in the office of the Registrar -Recorder/County 3.6.a Packet Pg. 89 Municipal Program Agreement No.: 2020MP22 Page 8 of 23 Clerk containing a covenant not to sell or otherwise convey the r eal property without the prior express written consent of the District, which consent shall not be unreasonably withheld. B-4. Amendment Except as provided in Section II of the Agreement, no amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties. No oral or written understanding or agreement not incorporated in this Agreement is binding on any of the parties. B-5. Assignment The Municipality shall not assign this Agreement. B-6. Audit and Recordkeeping 1. The Municipality shall retain for a period of seven (7) years, all records necessary in accordance with Generally Accepted Accounting Principles to determine the amounts expended, and eligibility of Projects implemented using SCW Program Payments. The Municipality, upon demand by authorized representatives of the District, shall make such records available for examination and review or audit by the District or its authorized representatives. Records shall include accounting records, written policies and procedures, contract files, original estimates, correspondence, change order files, including documentation covering negotiated settlements, invoices, and any other supporting evidence deemed necessary to substantiate charges related to SCW Program Payments and expenditures. 2. The Municipality is responsible for obtaining an independent audit to determine compliance with the terms and conditions of this Agreement and all requirements applicable to the Municipality contained in chapters 16 and 18 of the Code. Municipality shall obtain an independent audit of their SCW Program Payments every three (3) years. Audits shall be funded with Municipal Program funds. 3. Municipality shall file a copy of all audit reports by the ninth (9th) month from the end of each three (3) year period to detail the preceding three (3) years of expenditures. Audit reports shall be posted on the District’s publicly accessible website. Every Third Fiscal Year Fiscal Year Audit Begins Audit Report Due to District 2020-21 7/1/2023 No later than 3/31/2024 4. Upon reasonable advanced request, the Municipality shall permit the Chief Engineer to examine the infrastructure Projects using SCW Program Payments. The Municipality shall permit the authorized District representative, including the Auditor-Controller, to examine, review, audit, and transcribe any and all audit 3.6.a Packet Pg. 90 Municipal Program Agreement No.: 2020MP22 Page 9 of 23 reports, other reports, books, accounts, papers, maps, and other records that relate to the SCW Program Payments. Examination activities are considered District administration of the SCW Program. 5. Expenditures determined by an audit to be in violation of any provision of Chapters 16 or 18 of the Code, or of this Agreement, shall be subject to the enforcement and remedy provisions of Section 18.14 of the Code. B-7. Availability of Funds District’s obligation to disburse the SCW Program Payment is contingent upon the availability of sufficient funds to permit the disbursements provided for herein. If sufficient funds are not available for any reason including, but not limited to, failur e to fund allocations necessary for disbursement of the SCW Program Payment, the District shall not be obligated to make any disbursements to the Municipality under this Agreement. This provision shall be construed as a condition precedent to the obligation of the District to make any disbursements under this Agreement. Nothing in this Agreement shall be construed to provide the Municipality with a right of priority for disbursement over any other Municipality. If any disbursements due to the Municipality u nder this Agreement are deferred because sufficient funds are unavailable, it is the intention of the District t hat such disbursement will be made to the Municipality when sufficient funds do become available, but this intention is not binding. If this Agreement’s funding for any Fiscal Year is reduced or deleted by order of the Board, the District shall have the op tion to either cancel this Agreement with no liability occurring to the District or offer an amendment to the Municipality to reflect the reduced amount. B-8. Choice of Law The laws of the State of California govern this Agreement. B-9. Claims Any claim of the Municipality is limited to the rights, remedies, and claims procedures provided to the Municipality under this Agreement. Municipal expenditures of a SCW Program Payment that involves the District shall utilize a separate and specific agreement to that Project that includes appropriate indemnification superseding that in this Agreement. B-10. Compliance with SCW Program The Municipality shall comply with and require its contractors and subcontractors to comply with all provisions of Chapters 16 and 18 of the Code. B-11. Compliance with Law, Regulations, etc. The Municipality shall, at all times, comply with and require its contractors and subcontractors to comply with all applicable local, state and federal laws, rules, guidelines, regulations, and requirements. 3.6.a Packet Pg. 91 Municipal Program Agreement No.: 2020MP22 Page 10 of 23 B-12. Continuous Use of Municipal Projects; Lease or Disposal of Municipal Projects The Municipality shall not abandon, substantially discontinue use of, lease, or dispose of all or a significant part or portion of any Project funded in whole or in par t with SCW Program Payments during the useful life (defined as 30 years unless specified otherwise in annual plans and subsequent reports) of the Project without prior written approval of the District. Such approval may be conditioned as determined to be a ppropriate by the District, including a condition requiring repayment of a pro rata amount of the SCW Program Payments used to fund the Project together with interest on said amount accruing from the date of lease or disposal of the Project. B-13. Disputes Should a dispute arise between the parties, the party asserting the dispute will notify the other parties in writing of the dispute. The parties will then meet and confer within 21 calendar days of the notice in a good faith attempt to resolve the dispute. If the matter has not been resolved through the process set forth in the preceding paragraph, any party may initiate mediation of the dispute. Mediation will be before a retired judge or mediation service mutually agreeable to the parties. All costs of the mediation, including mediator fees, will be paid one-half by the District and one-half by the Municipality. SCW Program Payments shall not be used to pay for any costs of the mediation. The parties will attempt to resolve any dispute through the process set forth above before filing any action relating to the dispute in any court of law. B-14. Final Inspection and Certification of Registered Professional Upon completion of the design phase and before construction of a project, the Municipality shall provide certification by a California Registered Professional (i.e., Professional Civil Engineer, Engineering Geologist) that the design has been completed. Upon completion of the project, the Municipality shall provide for a final inspection and certification by a California Registered Professional (i.e., Professional Civil Engineer, Engineering Geologist), that the Project has been completed in accordance with submitted final plans and specifications and any modifications thereto and in accordance with this Agreement. B-15. Force Majeure. In the event that Municipality is delayed or hindered from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials not related to the price thereof, riots, insurrection, war, or other reasons of a like nature beyond the control of the Municipality, then performance of such acts shall be excused for the period of the delay, and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 3.6.a Packet Pg. 92 Municipal Program Agreement No.: 2020MP22 Page 11 of 23 B-16. Funding Considerations and Exclusions 1. All expenditures of SCW Program Payments by Municipality must comply with the provisions of Chapters 16 and 18 of the Los Angeles County Flood Control District Code, including but not limited to the provisions regarding eligible expenditures contained in Section 16.05.A.2 and the provision regarding ineligible expenditures contained in Section 16.05.A.3. 2. SCW Program Payments shall not be used in connection with any Project implemented as an Enhanced Compliance Action ("ECA") and/or Supplemental Environmental Project ("SEP") as defined by State Water Resources Control Board Office of Enforcement written policies, or any other Project implemented pursuant to the settlement of an enforcement action or to offset monetary penalties imposed by the State Water Resources Control Board, a Regional Water Quality Control Board, or any other regulatory authority; provided, however, that SCW funds may be used for a Project implemented pursuant to a time schedu le order ("TSO") issued by the Los Angeles Regional Water Quality Control Board if, at the time the TSO was issued, the Project was included in an approved watershed management program (including enhanced watershed management programs) developed pursuant to the MS4 Permit. B-17. Indemnification The Municipality shall indemnify, defend and hold harmless the District, the County of Los Angeles and their elected and appointed officials, agents, and employees from and against any and all liability and expense, including defense costs, leg al fees, claims, actions, and causes of action for damages of any nature whatsoever, including but not limited to bodily injury, death, personal injury, or property damage, arising from or in conjunction with: (1) any Project or Program implemented by the Municipality, in whole or in part, with SCW Program Payments or (2) any breach of this Agreement by the Municipality. B-18. Independent Actor The Municipality, and its agents and employees, if any, in the performance of this Agreement, shall act in an independent capacity and not as officers, employees, or agents of the District. The Municipality shall not contract work with a contractor who is in a period of debarment from any agency within the District. (LACC Chapter 2.202) B-19. Integration This is an integrated Agreement. This Agreement is intended to be a full and complete statement of the terms of the agreement between the District and Municipality, and expressly supersedes any and all prior oral or written agreements, covenants, representations and warranties, express or implied, concerning the subject matter of this Agreement. 3.6.a Packet Pg. 93 Municipal Program Agreement No.: 2020MP22 Page 12 of 23 B-20. Lapsed Funds 1. The Municipality shall be able to carry over uncommitted SCW Program Payments for up to five (5) years from the end of the fiscal year in which those funds are transferred from the District to the Municipality. 2. If the Municipality is unable to expend the SCW Program Payment within five (5) years from the end of the fiscal year in which those funds are transferred from the District to the Municipality, then lapsed funding procedures will apply. Lapsed funds are funds that were transferred to the Municipality but were not committed to eligible expenditures by the end of the fifth (5 th) fiscal year after the fiscal year in which those funds were transferred from the District. 3. Lapsed funds shall be allocated by the Watershed Area Steering Committee of the respective Watershed Area to a new Project with benefit to that Municipality, if feasible in a reasonable time frame, or otherwise to the Watershed Area. 4. In the event that funds are to lapse, due to circumstances beyond the Municipality’s control, then the Municipality may request an extension of up to twelve (12) months in which to commit the funds to eligible expenditures. Extension Requests must contain sufficient justification and be submitted to the District in writing no later than three (3) months before the funds are to lapse. 5. The decision to grant an extension is at the sole discretion of the District. 6. Funds still uncommitted to eligible expenditures after an extension is g ranted will be subject to lapsed funding procedures without exception. Fiscal Year Transferred Funds Lapse After Extension Request Due Commit By 2019-20 6/30/2025 No later than 3/31/2025 No later than 6/30/2026 B-21. Municipal Project Access Upon reasonable advance request, the Municipality shall ensure that the District or any authorized representative, will have safe and suitable access to the site of any Project implemented by the Municipality in whole or in part with SCW Program Payments at all reasonable times. B-22. Non-Discrimination The Municipality agrees to abide by all federal, state, and County laws, regulations, and policies regarding non-discrimination in employment and equal employment opportunity. 3.6.a Packet Pg. 94 Municipal Program Agreement No.: 2020MP22 Page 13 of 23 B-23. No Third-Party Rights The parties to this Agreement do not create rights in, or grant remedies to, any third party as a beneficiary of this Agreement, or of any duty, covenant, obligation, or undertaking established herein B-24. Notice 1. The Municipality shall notify the District in writing within five (5) working days of the occurrence of the following: a. Bankruptcy, insolvency, receivership or similar event of the Municipality; or b. Actions taken pursuant to State law in anticipation of filing for bankruptcy. 2. The Municipality shall notify the District within ten (10) working days of any litigation pending or threatened against the Municipality regarding its continued existence, consideration of dissolution, or disincorporation. 3. The Municipality shall notify the District promptly of the following: a. Any significant deviation from the submitted Annual Plan for the current Fiscal Year, including discussion of any major changes to the scope of funded projects or programs, noteworthy delays in implementation, reduction in benefits or community engagement, and/or modifications that change the SCW Program Goals intended to be accomplished. b. Discovery of any potential archaeological or historical resource. Should a potential archaeological or historical resource be discovered during construction, the Municipality agrees that all work in the area of the find will cease until a qualified archaeologist has evaluated the situation and made recommendations regarding preservation of the resource, and the District has determined what actions should be taken to protect and preserve the resource. The Municipality agrees to implement appropriate actions as directed by the District. c. Any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by District representatives with at least fourteen (14) days’ notice to the District. B-25. Municipality’s Responsibility for Work The Municipality shall be responsible for all work and for persons or entities engaged in work performed pursuant to this Agreement including, but not limited to, contractors, subcontractors, suppliers, and providers of services. The Municipality shall be responsible for responding to any and all disputes arising out of its contracts for work on the Project. The District will not mediate disputes between the Municipality and any other entity concerning responsibility for performance of work. 3.6.a Packet Pg. 95 Municipal Program Agreement No.: 2020MP22 Page 14 of 23 B-26. Reporting The Municipality shall be subject to and comply with all applicable requirements of the District regarding reporting requirements. Municipalities shall report available data through the SCW Reporting Module, once available. 1. Annual Progress/Expenditure Reports. The Municipality shall submit Annual Progress/Expenditure Reports, using a format provided by the District, within six (6) months following the end of the Fiscal Year to the District to detail the activities of the prior year. The Annual Progress/Expenditure Reports shall be posted on the District’s publicly accessible website and on the Municipality’s website. The Annual Progress/Expenditure Report shall include: a. Amount of funds received; b. Breakdown of how the SCW Program Payment has been expended; c. Documentation that the SCW Program Payment was used for eligible expenditures in accordance with Chapters 16 and 18 of the Code; d. Description of activities that have occurred, milestones achieved, and progress made to date, during the applicable reporting period including comparison to the Annual Plan and corresponding metrics; e. Discussion of any existing gaps between what was planned and what was achieved for the prior year, include any lessons learned; f. Description of the Water Quality Benefits, Water Supply Benefits, and Community Investment Benefits and a summary of how SCW Program Payments have been used to achieve SCW Program Goals for the prior year, including graphical representation of available data and specific metrics to demonstrate the benefits being achieved through the years’ investments. g. Discussion of alignment with other local, regional, and state efforts, resources, and plans, as applicable. This includes discussion of opportunities for addressing additional SCW Program Goals, leveraging SCW Program Goals, and increasing regional capacity to supplement the SCW Program. h. Additional financial or Project-related information in connection with activity funded in whole or in part using SCW Program Payments as required by the District. i. Certification from a California Registered Professional (Civil Engineer or Geologist, as appropriate), that projects implemented with SCW Program Payments were conducted in accordance with Chapters 16 and 18 of the Code. 3.6.a Packet Pg. 96 Municipal Program Agreement No.: 2020MP22 Page 15 of 23 j. Report on annual and total (since inception of program) benefits provided by programs and projects funded by SCW Program Payment. This includes comparisons to annual plans and alignment with corresponding specific quantitative targets and metrics (note that SCW Reporting Module will facilitate calculation of benefits and graphical representation of pertinent data): i. Annual volume of stormwater captured and treated ii. Annual volume of stormwater captured and reused iii. Annual volume of stormwater captured and recharged to a managed aquifer iv. Annual creation, enhancement, or restoration of Community Investment Benefits. If none, discuss considerations explored and reasons to not include. v. Annual acreage increases in Nature-Based Solutions and claimed level of NBS (with matrix demonstrating determination of good, better, best, as outlined in Exhibit C). If none, discuss considerations explored and reasons to not include. vi. Annual expenditures providing DAC Benefits. If none, discuss considerations explored and reasons to not include. 2. Documentation of the Community Outreach and Engagement utilized for and/or achieved with the SCW Program Payment described in the Annual Plan Exhibit A. This information must be readily accessible to members of the public. 3. As Needed Information or Reports. The Municipality agrees to promptly provide such reports, data, and information as may be reasonably requested by the District including, but not limited to material necessary or appropriate for evaluation of the SCW Program or to fulfill any reporting requirements of the County, state or federal government. B-27. Representations, Warranties, and Commitments The Municipality represents, warrants, and commits as follows: 1. Authorization and Validity. The execution and delivery of this Agreement, including all incorporated documents, by the individual signing on behalf of Municipality, has been duly authorized by the governing body of Municipality, as applicable. Thi s Agreement constitutes a valid and binding obligation of the Municipality, enforceable in accordance with its terms, except as such enforcement may be limited by law. 2. No Violations. The execution, delivery, and performance by the Municipality of this Agreement, including all incorporated documents, do not violate any provision of any law or regulation in effect as of the date set forth on the first page hereof, or result in any breach or default under any contract, obligation, indenture, or other 3.6.a Packet Pg. 97 Municipal Program Agreement No.: 2020MP22 Page 16 of 23 instrument to which the Municipality is a party or by which the Municipality is bound as of the date set forth on the first page hereof. 3. No Litigation. There are no pending or, to the Municipality’s knowledge, threatened actions, claims, investigations, suits, or proceedings before any governmental authority, court, or administrative agency which affect the Municipality's ability to complete the Annual Plan. 4. Solvency. None of the transactions contemplated by this Agreement will be or have been made with an actual intent to hinder, delay, or defraud any present or future creditors of the Municipality. As of the date set forth on the first page hereof, the Municipality is solvent and will not be rendered insolvent by the transactions contemplated by this Agreement. The Municipality is able to pay its debts as they become due. 5. Legal Status and Eligibility. The Municipality is duly organized and existing and in good standing under the laws of the State of California. The Municipality shall at all times maintain its current legal existence and preserve and keep in full force and effect its legal rights and authority. 6. Good Standing. The Municipality must demonstrate it has not failed to comply with previous County and/or District audit disallowances within the preceding five years. B-28. Travel Any reimbursement for necessary ground transportation and lodging shall be at rates not to exceed those set by the California Department of Human Resources; per diem costs will not be eligible expenses. These rates may be found at http://www.calhr.ca.gov/employees/Pages/travel-reimbursements.aspx. Reimbursement will be at the State travel amounts that are current as of the date costs are incurred by the Municipality. No travel outside the Los Ange les County Flood Control District region shall be reimbursed unless prior written authorization is obtained from the Program Manager. B-29. Unenforceable Provision In the event that any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, the parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. B-30. Withholding of Disbursements and Material Violations Notwithstanding any other provision of this Agreement, the District may withhold all or any portion of the SCW Program Payment for any Fiscal Year in the event that: 1. The Municipality has violated any provision of this Agreement; or 3.6.a Packet Pg. 98 Municipal Program Agreement No.: 2020MP22 Page 17 of 23 2. The Municipality fails to maintain reasonable progress in achieving SCW Program Goals, following an opportunity to cure. 3. Failure to remain in Good Standing, described in Section B -26 of Exhibit B. 4. Failure to submit annual reports on meeting SCW Program Goals. 3.6.a Packet Pg. 99 Municipal Program Agreement No.: 2020MP22 Page 18 of 23 EXHIBIT C – NATURE BASED SOLUTIONS (NBS) BEST MANAGEMENT PRACTICES Municipalities shall consider incorporation of Nature-based solutions (NBS) into their projects. NBS refers to the sustainable management and use of nature for undertaking socio-environmental challenges, including climate change, water security, water pollution, food security, human health, and disaster risk management. As this environmental management practice is increasingly incorporated into projects for the SCW Program, this guidance document may be expanded upon to further quantify NBS practices based on benefits derived from their incorporation on projects. The SCW Program defines NBS as a Project that utilizes natural processes that slow, detain, infiltrate or filter Stormwater or Urban Runoff. These methods may include relying predominantly on soils and vegetation; increasing the permeability of Impermeable Areas; protecting undeveloped mountains and floodplains; creating and restoring riparian habitat and wetlands; creating rain gardens, bioswales, and parkway basins; enhancing soil through composting, mulching; and, planting trees and vegetation, with preference for native species. NBS may also be designed to provide additional benefits such as sequestering carbon, supporting biodiversity, providing shade, creating and enhancing parks and open space, and improving quality of life for surrounding communities. NBS include Projects that mimic natural processes, such as green streets, spreading grounds and planted areas with water storage capacity. NBS may capture stormwater to improve water quality, collect water for reuse or aquifer recharge, or to support vegetation growth utilizing natural processes. Municipalities are to include in each Annual Progress/Expenditure Report whether and how their project achieves a good, better, or best for each of the 6 NBS method s in accordance with the guidance below. Additionally, Annual Progress/ Expenditure Reports should include discussion on any considerations taken to maximize the class within each method. If at least 3 methods score within a single class, the overall proje ct can be characterized as that class. Municipalities must attach a copy of the matrix for each project with the good, better, or best column indicated for each method, to facilitate District tracking of methods being utilized. BEST BETTER GOOD 3.6.a Packet Pg. 100 Municipal Program Agreement No.: 2020MP22 Page 19 of 23 METHODS GOOD BETTER BEST Vegetation/Green Space Use of climate- appropriate, eco-friendly vegetation (groundcover, shrubs, and trees) / green space 5%-15% covered by new climate-appropriate vegetation Use of native, climate- appropriate, eco-friendly vegetation (groundcover, shrubs, and trees) / green space 16%-35% covered by new native vegetation Establishment of plant communities with a diversity of native vegetation (groundcover, shrubs, and trees) / green space that is both native and climate-appropriate More than 35% covered by new native vegetation Increase of Permeability Installation of vegetated landscape – 25%-49% paved area removed Redesign of existing impermeable surfaces and/or installation of permeable surfaces (e.g. permeable pavement and infiltration trenches) Installation of vegetated landscape – 50%-74% paved area removed Improvements of soil health (e.g., compaction reduction) Installation of vegetated landscape – 75%-100% paved area removed Creation of well- connected and self- sustained natural landscapes with healthy soils, permeable surfaces, and appropriate vegetation Protection of Undeveloped Mountains & Floodplains ● Preservation of native vegetation ● Minimal negative impact to existing drainage system ● Preservation of native vegetation ● Installation of new feature(s) to improve existing drainage system ● Creation of open green space ● Installation of features to improve natural hydrology Creation & Restoration of Riparian Habitat & Wetlands Partial restoration of existing riparian habitat and wetlands Planting of climate appropriate vegetation - between 11 and 20 different climate- appropriate or native plant species newly planted No potable water used to sustain the wetland ● Full restoration of existing riparian habitat and wetlands ● Planting of native vegetation - between 21 and 40 different native plant species newly planted No potable water used to sustain the wetland ● Full restoration and expansion of existing riparian habitat and wetlands Planting of plant communities with a diversity of native vegetation – between 41 and 50 different native plant species newly planted No potable water used to sustain the wetland 3.6.a Packet Pg. 101 Municipal Program Agreement No.: 2020MP22 Page 20 of 23 New Landscape Elements Elements designed to capture runoff for other simple usage (e.g. rain gardens and cisterns), capturing the 85th percentile 24-hour storm event for at least 50% of the entire parcel Elements that design to capture/redirect runoff and filter pollution (e.g. bioswales and parkway basins), capturing the 85th percentile 24-hour storm event from the entire parcel Large sized elements that capture and treat runoff to supplement or replace existing water systems (e.g. wetlands, daylighting streams, groundwater infiltration, floodplain reclamation), capturing the 90th percentile 24-hour storm event from the entire parcel and/or capturing off-site runoff Enhancement of Soil Use of soil amendments such as mulch and compost to retain moisture in the soil and prevent erosion Planting of new climate- appropriate vegetation to enhance soil organic matter Use of soil amendments such as mulch and compost that are locally generated to retain moisture in the soil, prevent erosion, and support locally based composting and other soil enhancement activities Planting of new native, climate-appropriate vegetation to enhance soil organic matter Use of soil amendments such as mulch and compost that are locally generated, especially use of next-generation design with regenerative adsorbents (e.g. woodchips, biochar) to retain moisture in the soil, prevent erosion, and support on-site composting and other soil enhancement activities Planting of new native, climate appropriate vegetation to enhance soil organic matter 3.6.a Packet Pg. 102 Municipal Program Agreement No.: 2020MP22 Page 21 of 23 EXHIBIT D – OPERATIONS AND MAINTENANCE GUIDANCE DOCUMENT Municipalities shall operate and maintain infrastructure projects for the useful lif e of the project and are to consider using the following guidance for operations and maintenance for infrastructure projects. Operational maintenance is the care and upkeep of Projects that may require detailed technical knowledge of the Project’s function and design. Project specific operational and maintenance plans shall consider the activities listed below and set forth specific activities and frequencies (not limited to those below) as determined to be appropriate by the Municipalities and best practices, including stakeholder engagement as applicable. Operational maintenance is to be performed by the operator of the Project with a purpose to make the operator aware of t he state of readiness of the Project to deliver stormwater and urban runoff benefits. 1. Litter Control • Regular removal of litter, nonhazardous waste materials, and accumulated debris near planted areas, rock areas, decomposed granite areas, rest areas, fence perimeters, adjoining access roads and driveways, drains, pedestrian trails, viewing stations, shelter houses, and bicycle pathways. • Regular inspection and maintenance of pet waste stations • Maintaining trash receptacles • Removal of trash, debris, and blockages from bioswales • Inspection and cleaning of trash booms • Inspection of weir gates and stop logs to clean debris, as required. 2. Vegetation Maintenance • Weed control o Recognition and removal of weeds, such as perennial weeds, morning glory, vine-type weeds, ragweed, and other underground spreading weeds. o Avoiding activities that result in weed seed germination (e.g. frequent soil cultivation near trees or shrubs) o Regular removal of weeds from landscape areas, including from berms, painted areas, rock areas, gravel areas, pavement cracks along access roads and driveways, drains, pedestrian trails, viewing stations, park shelters, and bicycle paths. • Tree and shrubbery trimming and care o Removal of dead trees and elimination of diseased/damaged growth o Prevent encroachment of adjacent property and provide vertical clearance o Inspect for dead or diseased plants regularly • Wetland vegetation and landscape maintenance o Installation and maintenance of hydrophytic and emergent plants in perennially wet and seasonal, intermittent habitats. o Draining and drawdown of wetland and excessive bulrush remova l 3.6.a Packet Pg. 103 Municipal Program Agreement No.: 2020MP22 Page 22 of 23 o Weed and nuisance plant control o Removal of aquatic vegetation (e.g. algae and primrose) using appropriate watercraft and harvesting equipment o Wildflower and meadow maintenance o Grass, sedge, and yarrow management o Removal of unwanted hydroseed 3. Wildlife Management • Exotic species control • Provide habitat management; promote growth of plants at appropriate densities and promote habitat structure for animal species • Protect sensitive animal species (e.g. protection during critical life stages including breeding and migration) • Avoid disturbances to nesting birds • Avoid spread of invasive aquatic species 4. Facility Inspection • Inspect project sites for rodent and insect infestations on a regular basis • Inspect for and report graffiti in shelter houses, viewing stat ions, benches, paving surfaces, walls, fences, and educational and directional signs • Inspect facilities for hazardous conditions on roads and trails (e.g. access roads and trails, decomposed granite pathways, and maintenance roads) • Inspect shade structures for structural damage or defacement • Inspect hardscapes • Inspect and maintain interpretive and informational signs • Inspect site furnishings (e.g. benches, hitching posts, bicycle racks) • Maintain deck areas (e.g. benches, signs, decking surfaces) • Visually inspect weirs and flap gates for damage; grease to prevent locking. • Inspect all structures after major storm events, periodically inspect every 3 months, and operate gates through full cycles to prevent them from locking up. 5. Irrigation System Management • Ensuring automatic irrigation controllers are functioning properly and providing various plant species with proper amount of water. o Cycle controller(s) through each station manually and automatically to determine if all facets are functioning properly. o Inspection should be performed at least monthly. o Recover, replace, or refasten displaced or damaged valve box covers. o Inspect and repair bubbler heads. 3.6.a Packet Pg. 104 Municipal Program Agreement No.: 2020MP22 Page 23 of 23 o Repair and replace broken drip lines or emitters causing a loss of water (to prevent ponding and erosion). o Maintain drip system filters to prevent emitters from clogging. Inspection and cleaning should occur at least monthly. o Inspect and clean mainline filters, wye strainers, basket filters, and filters at backflow devices twice a year. o Maintain and check function of the drip system. • Keeping irrigation control boxes clear of vegetation • Operating irrigation system to ensure it does not cause excessively wet, waterlogged areas, and slope failure • Utilizing infrequent deep watering techniques to encourage deep rootin g, drought tolerant plant characteristics to promote a self-sustaining, irrigation free landscape • Determine watering schedules based on season, weather, variation in plant size, and plant varieties. At least four times a year (e.g. change of season), reschedule controller systems. • Turn off irrigation systems at the controller at the beginning of the rainy season, or when the soil has a high enough moisture content. • Use moisture sensing devices to determine water penetration in soil. 6. Erosion Management and Control • Inspect slopes for erosion during each maintenance activity • Inspect basins for erosion • Take corrective measures as needed, including filling eroded surfaces, reinstalling or extending bank protection, and replanting exposed soil. 7. Ongoing Monitoring Activities • Monitor controllable intake water flow and water elevation • Examine inflow and outflow structures to ensure devices are functio ning properly and are free of obstructions. • Water quality sampling (quarterly, unless justified otherwise) • Checking telemetry equipment • Tracking and reporting inspection and maintenance records 8. Vector and Nuisance Insect Control • Monitoring for the presence of vector and nuisance insect species • Adequate pretreatment of influent wastewater to lessen production of larval mosquitos • Managing emergent vegetation • Using hydraulic control structures to rapidly dewater emergent marsh areas • Managing flow velocities to reduce propagation of vectors 3.6.a Packet Pg. 105 Agenda #: 4.1 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: ZONE CHANGE AND DEVELOPMENT REVIEW FOR NEW SINGLE FAMILY RESIDENCE LOCATED AT 1111 N. DIAMOND BAR BLVD. (PLANNING CASE NO. PL2015-253). STRATEGIC GOAL: Open, Engaged & Responsive Government RECOMMENDATION: A. Open the public hearing to receive public testimony; B. Close the public hearing; C. Introduce for first reading by title only, waive full reading of Ordinance No. 01(2020) adopting Zone Change to change the existing zoning from Neighborhood Commercial (C-1) to Low Density Residential (RL), and schedule second reading and adoption at the August 4, 2020 City Council meeting; and D. Adopt Resolution No. 2020-31 approving Development Review based on the Findings of Fact, and subject to the Conditions of Approval contained therein. BACKGROUND: The applicant is proposing to construct a new 4,333 square-foot, two-story single- family residence, approximately 29 feet in height, with a three -car garage, on a vacant 11,225 square-foot (0.26 acre) parcel located on the north side of Diamond Bar Boulevard, between Soltaire Street and Highland Valley Road. The proposed project requires the approval of the following land use applications : • Zone Change (ZC) to change the existing zoning designation from Neighborhood Commercial (C-1) to Low Density Residential (RL), to be consistent with the underlying Low Density Residential General Plan land use designation; and 4.1 Packet Pg. 106 • Development Review of the site and architectural design of the proposed residence to ensure consistency with the General Plan, Development Code, and compliance with all applicable design guidelines and standards. Because the requested Zone Change requires adoption of an Ordinance, the City Council is the decisionmaking authority for both applications. Planning Commission Recommendation On June 23, 2020, the Planning Commission conducted a noticed public hearing to consider the project. By a 4-1 vote, the Commission recommended that the City Council approve the project, finding the proposed rezoning to be consistent with the underlying General Plan land use designation, and finding the project design to be consistent with Development Code standards and Citywide Design Guidelines . A detailed project analysis is provided in the Planning Commission staff report (Attachment 3), and the draft meeting minutes are included in Attachment 4. Three members of the public spoke during public hearing and stated concerns over lack of parking, traffic hazards, land use compatibility, and potential health concerns from the air quality due to its close proximity to the SR 57 freeway. Four emails were also received on June 22 and 23, 2020 (included as Attachment 7), expressing many of the same concerns. The Planning Commission directed staff to summarize the issues raised by the public in this City Council report. Project History Office Building Proposal On April 11, 2013, the previous designer/applicant, JWL Associates Inc., held a community meeting to solicit neighborhood feedback for a proposed three-story commercial office building on the subject property. Approximately 20 residents attended the meeting and raised a number of issues ranging from the project’s impact on overall site and neighborhood compatibility, adequacy of onsite parking for both employees and patrons, and the impacts on public and private viewsheds from the street and nearby residences. Based on the feedback from the community, the applicant withdrew the application for a commercial office building. 4.1 Packet Pg. 107 Rendering of Three-Story Commercial Office Building Proposed in 2013 Three-Story Residence Proposal On May 28, 2015, the applicant submitted a proposal for a 3,932 square-foot, three- story single-family residence, measuring approximately 31 feet high, with a two-car garage. To assist the Commissioners, staff and residents to visualize the mass, bulk and height of the proposed three-story building in relation to its surroundings, staff required the applicant to install “story poles” on the project site to accurately depict how the building silhouette would look from any vantage point. Each pole was placed at the corners of the proposed building and at the maximum height of the roof ridge. The Planning Commission conducted a public hearing on July 25, 2017, where 11 residents spoke, most voicing concerns about the effect the proposed structure would have on existing viewsheds. The Commission continued the matter to an unspecified date in order for the applicant to perform a focused traffic study that: 1) analyzes reaction times and distances needed for motorists to safely exit the subject property, as well as for southbound motorists to react to vehicles entering and exiting the site; and 2) evaluates on -site maneuverability for a variety of vehicle types to enter and exit the subject property in a safe manner. The property owner subsequently shelved these plans and hired a new architect to pursue a fresh design approach. 4.1 Packet Pg. 108 Rendering of the 3-Story Residence Reviewed by the Planning Commission in 2017 Current Proposal – Two-Story Residence On November 18, 2019, the new architect submitted plans for a two -story single- family residence, designed in a California modern style of architecture. As previously stated, the Planning Commission recommended approval of this project on June 26, 2020 by a 4-1 vote. The Planning Commission findings setting forth the basis for its recommendations are incorporated into the attached City Council ordinance and resolution. Rendering of Currently Proposed 2-Story Single-Family Residence 4.1 Packet Pg. 109 ANALYSIS: As stated, a detailed project evaluation is included in the attached Planning Commission staff report (Attachment 3). As directed by the Commission, the discussion that follows summarizes issues raised by the public in regards to the project currently proposed, and describes how those issues have been addressed. • Issue: There is lack of parking for the proposed single-family residence both onsite as well as offsite. Response: While on-street parking is prohibited, the project has been designed with a circular/horseshoe driveway that could accommodate off-street parking in lieu of curbside parking. The circular driveway allows vehicles to enter and exit the property in a more efficient manner where vehicles would access the property by entering and exiting the site in a continuous forward maneuver, instead of reversing or making multiple point turns. • Issue: Entry into the proposed single-family residence will create a traffic hazard for those traveling southbound on Diamond Bar Boulevard. Response: The applicant submitted a traffic access study, and the City’s consulting traffic engineer verified that there is adequate sight distance for cars exiting the driveway, as well as for southbound motorists to react to vehicles entering the site. • Issue: There is potential public health concern for the residents of the proposed single-family residence due to the particulate matter and air quality from the adjacent SR 57 Freeway. Response: The Commission recommends a condition of approval requiring the property owner to include a deed disclosure with the Los Angeles County Recorder’s Office informing future purchasers that the property is potentially located within an air quality sensitive receptor area. This condition of approval is included in the Council resolution. • Issue: The proposed single-family residence is an incompatible land use. Response: The subject site is an irregular and physically constrained lot. The topography and tapering lot depths limits the site’s overall development potential. The Zone Change will allow the site to be developed with a new two -story single- family residence and will be consistent with the General Plan land use designation of Low Density Residential. The modification will rectify an inconsistency between the General Plan and Zoning maps, and is the most viable option in comparison to neighborhood commercial uses as currently zoned. The proposed Zone Change lowers the potential intensity of the land use from allowing n eighborhood commercial uses to the least intense land use of a sin gle-family residence on a privately-owned parcel. Furthermore, it accommodates a viable development of a single-family residence that fits more appropriately with the fabric of the 4.1 Packet Pg. 110 surrounding area, and generates less impacts—such as traffic and parking—in comparison to commercial or multi-family residential uses. ENVIRONMENTAL ASSESSMENT: The Project has been reviewed for compliance with the California Environmental Quality Act (CEQA). Based on that assessment, the City has determined the Project to be exempt from CEQA under the CEQA Guidelines Sections 15303(a)(construction of a new single-family residence) and 15061(b)(3) in that “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” The site is a vacant and unimproved lot. The Zone Change will allow the site to be developed with a new two-story single-family residence to be consistent with the General Plan land use designation. NOTICE OF PUBLIC HEARING: Public hearing notices were mailed to property owners within a 1,000 -foot radius of the Project site on July 6, 2020. The notice was also published in the San Gabriel Valley Tribune newspaper on July 10, 2020. The Project Site was posted with a notice display board, and a copy of the public notice was posted at the City’s four designated community posting sites. LEGAL REVIEW: The City Attorney has reviewed and approved the Ordinance and Resolution as to form. PREPARED BY: REVIEWED BY: Attachments: 1. 4.1.a Ordinance No. 01 (2020) Approval of ZC 4.1 Packet Pg. 111 2. 4.1.b Resolution No. 2020-31 Approval of DR and Standard Conditions of Approval 3. 4.1.c Planning Commission Staff Report dated June 23, 2020 (Without Attachments) 4. 4.1.d Draft Minutes from June 23, 2020 Planning Commission Hearing for the Project 5. 4.1.e Site, Architectural, Conceptual Grading and Landscape Plans 6. 4.1.f Traffic Access Study Dated January 3, 2020 7. 4.1.g Written Public Comments Received by Planning Commision 8. 4.1.h Written Public Comments Received 4.1 Packet Pg. 112 ORDINANCE NO. 01(2020) AN ORDINANCE OF THE CITY OF DIAMOND BAR, CALIFORNIA, APPROVING ZONE CHANGE PLANNING CASE NO. PL2015-253 TO CHANGE THE EXISTING ZONING DISTRICT FROM NEIGHBORHOOD COMMERCIAL (C-1) TO LOW DENSITY RESIDENTIAL (RL) FOR THE 0.26-ACRE PROPERTY LOCATED AT 1111 N. DIAMOND BAR BOULEVARD (ASSESSOR’S PARCEL NO. 8706-008-013). A. RECITALS 1. The property owner, James Chin Chou (Trustee), and applicant, Creative Design Associates, filed an application for the following entitlements: (1) Zone Change to modify the existing zoning district from Commercial (C-1) to Low Density Residential (RL); and (2) Development Review to construct a new 4,333 square-foot, two-story, new single family residence located at 1111 N. Diamond Bar Boulevard, City of Diamond Bar, Los Angeles County, California (“Project Site”). 2. California Government Code Section 65860 requires the City’s ordinance to be consistent with the General Plan. The Zone Change results in the General Plan land use designation and zoning district on the subject property to be in conformance with each other. 3. The subject property is made up of one parcel totaling 11,225 square feet (0.26 acre). It is located in the Neighborhood Commercial (C-1) zone with an underlying General Plan land use designation of Low Density Residential (RL). 4. The proposed Zone Change on the Subject Property is exempt from the California Environmental Quality Act (CEQA), as prescribed under CEQA Guidelines Sections 15303(a) (construction of a new single-family residence) and 15061(b)(3) in that “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” The modification will rectify an existing inconsistency between the General Plan and Zoning Maps, and allow for development of a single family residence. Therefore, no further environmental review is required. 5. On July 10, 2020, notification of the public hearing for this project was published in the San Gabriel Valley Tribune newspaper. Public hearing notices were mailed to property owners within a 1,000-foot radius of the project site and public notices were posted at the City’s four designated 4.1.a Packet Pg. 113 Ordinance No. (01) 2020 2 community posting sites on July 6, 2020. In addition to the posted and mailed notices, the project site was posted with a display board. 6. On March 24, 2020, the Planning Commission hearing was cancelled due to the State and County COVID-19 shelter-in-place orders. On April 28, 2020, the project was postponed to the June 23, 2020 hear ing. The applicant provided written consent to delay the hearing for up to 90 days, which is the maximum extensions allowable under the Permit Streamlining Act (Gov. Code §65957). 7. On June 12, 2020, public hearing notices were mailed to property owners within a 1,000-foot radius of the Project site. On June 12, 2020, notification of the public hearing for this project was published in the San Gabriel Valley Tribune newspaper. A notice display board was posted at the site, and a copy of the notice was posted at the City's four designated community posting sites. 8. On June 23, 2020, the Planning Commission of the City of Diamond Bar conducted a duly noticed public hearing, solicited testimony from all interested individuals, and concluded said hearing on that date. 9. On July 21, 2020, the City Council of the City of Diamond Bar conducted a duly noticed public hearing, solicited testimony from all interested individuals, and concluded said hearing on that date. 10. The City Council has determined that the proposed Zone Change represents a consistent, logical, appropriate and rational land use designation and implementing tool that furthers the goals and objectives of the City of Diamond Bar General Plan. 11. The documents and materials constituting the administrative record of the proceedings upon which the City’s decision is based are located at the City of Diamond Bar, Community Development Department, Planning Division, 21810 Copley Drive, Diamond Bar, CA 91765. NOW, THEREFORE, the City Council of the City of Diamond Bar does hereby ordain as follows: SECTION 1. That all of the facts set forth in the Recitals, Part A, of this Ordinance are true and correct. SECTION 2. The City Council does hereby find, as required by Municipal Code Section 22.70.050 and in conformance with California Government Code Section 65853 and 65860, that the Zone Change for Planning Case No. PL2015 -253 is consistent with the General Plan, as follows: 4.1.a Packet Pg. 114 Ordinance No. (01) 2020 3 a. The amendment to the Zoning Map is internally consistent with the General Plan and other adopted goals and policies of the City. b. The Zoning Map does not currently reflect the General Plan land use designation for the property. Zone Change Planning Case No. PL2015-253 will place the City’s Zoning Map in conformance with the General Plan land use designation of Low Density Residential (RL). SECTION 3. The Community Development Director shall modify the Official Zoning Map in accordance with this Ordinance to indicate thereon that the real property located at 1111 N. Diamond Bar Boulevard as attached herein as Exhibit A, is designated as Low Density Residential (RL). SECTION 4. The City Clerk shall certify to the passage and adoption of this Ordinance, causing it to be published as required by law, and it shall be effective thirty dates after its adoption. SECTION 5. The City shall forthwith transmit a certified copy of this Ordinance, by certified mail, to: James Chin Chou, 1359 Bentley Court, West Covina, CA 91791. PASSED, APPROVED AND ADOPTED this _____ day of ______, 2020, by the City Council of the City of Diamond Bar. __________________________ Steve Tye, Mayor ATTEST: I, Kristina Santana, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Ordinance was duly introduced at a regular meeting of the City Council held on the 21st day of July, 2020, and was duly adopted at a regular meeting of the City Council of the City of Diamond Bar held on the _____ day of ______ 2020, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: __________________________ Kristina Santana, City Clerk 4.1.a Packet Pg. 115 Ordinance No. (01) 2020 4 EXHIBIT: Exhibit A: Amended Zoning Map 4.1.a Packet Pg. 116 Ordinance No. (01) 2020 5 Exhibit A 4.1.a Packet Pg. 117 RESOLUTION NO. 2020-31 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR, CALIFORNIA, APPROVING DEVELOPMENT REVIEW NO. PL2015-253 TO CONSTRUCT A NEW 4,333 SQUARE-FOOT, TWO-STORY SINGLE-FAMILY RESIDENCE WITH AN ATTACHED 748 SQUARE-FOOT THREE-CAR GARAGE ON A 0.26 ACRE LOT LOCATED AT 1111 N. DIAMOND BAR BLVD. (APN 8706-008-013). A. RECITALS 1. The property owner, James Chin Chou (Trustee), and applicant, Creative Design Associates, have filed an application for the following entitlements: (1) Zone Change to modify the existing zoning district from Commercial (C-1) to Low Density Residential (RL); and (2) Development Review to construct a new 4,333 square-foot, two-story single-family residence with an attached 748 square-foot three-car garage located at 1111 N. Diamond Bar Boulevard, Diamond Bar, County of Los Angeles, California (“Project Site”). 2. On March 13, 2020, notification of the public hearing for this project was published in the San Gabriel Valley Tribune newspaper. Public hearing notices were mailed to property owners within a 1,000-foot radius of the project site and were posted at the City’s four designated community posting sites on March 6, 2020. In addition to the posted and mailed notices, the project site was posted with a display board. 3. On March 24, 2020, the Planning Commission hearing was cancelled due to the State and County COVID-19 shelter-in-place orders. On April 28, 2020, the project was postponed to the June 23, 2020 hearing. The applicant provided written consent to delay the hearing for up to 90 days, which is the maximum extensions allowable under the Permit Streamlining Act (Gov. Code §65957). 4. On June 12, 2020, public hearing notices were mailed to property owners within a 1,000-foot radius of the Project site. On June 12, 2020, notification of the public hearing for this project was published in the San Gabriel Valley Tribune newspaper. A notice display board was posted at the site, and a copy of the notice was posted at the City's four designated community posting sites. 5. On June 23, 2020, the Planning Commission of the City of Diamond Bar conducted a duly noticed public hearing, solicited testimony from all interested individuals, and concluded said hearing on that date. 6. On July 10, 2020, notification of the public hearing for this project was published in the San Gabriel Valley Tribune newspapers. Public hearing 4.1.b Packet Pg. 118 Resolution No. 2020-31 2 notices were mailed to property owners within a 1,000-foot radius of the project site on July 6, 2020. In addition to the published and mailed notices, the project site was posted with a display board and public notices were posted at the City’s designated community posting sites. 7. On July 21, 2020, the City Council of the City of Diamond Bar conducted a duly noticed public hearing, solicited testimony from all interested individuals, and concluded said hearing on that date. 8. The documents and materials constituting the administrative record of the proceedings upon which the City’s decision is based are located at the City of Diamond Bar, Community Development Department, Planning Division, 21810 Copley Drive, Diamond Bar, CA 91765. B. RESOLUTION NOW, THEREFORE, it is found, determined and resolved by the City Council of the City of Diamond Bar as follows: 1. The City Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct. 2. The proposed Development Review on the Subject Property is categorically exempt from the California Environmental Quality Act (CEQA), as prescribed under CEQA Guidelines Section s 15303(a) (construction of a new single-family residence) and 15061(b)(3) in that “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” The modification will rectify an existing inconsistency between the General Plan and Zoning Maps, and allow for development of a single family residence. Therefore, no further environmental review is required. 3. The City Council hereby specifically finds and determines that, having considered the record as a whole including the findings set forth below, there is no evidence before this City Council that the Proposed Project herein will have the potential of an adverse effect on wildlife resources or the habitat upon which the wildlife depends. Based upon substantial evidence, this City Council hereby rebuts the presumption of adverse effects contained in Section 753.5(d) of Title 14 of the California Code of Regulations. C. FINDINGS OF FACT Based on the findings and conclusions set forth herein and as prescribed under Diamond Bar Municipal Code (DBMC) Section 22.48, this City Council hereby finds and makes the following findings: 4.1.b Packet Pg. 119 Resolution No. 2020-31 3 Development Review Findings (DBMC Section 22.48.040) 1. The design and layout of the proposed development is consistent with the applicable elements of the City's General Plan, City Design Guidelines, and development standards of the applicable district, design guidelines, and architectural criteria for special areas (e.g., theme areas, specific plans, community plans, boulevards or planned developments): With the approval of the Zone Change, the design and layout of the proposed single-family residence consisting of 4,333 square feet of floor area and 748 square-foot, three-car garage area is consistent with the City’s General Plan, City Design Guidelines and development standards. The City’s General Plan Policy LU-P-56 requires that development on privately- owned, residentially designated land in hillside areas shall be compatible with the surrounding natural areas promoting design principles such as minimizing grading, preserving existing vistas, and incorporate site and architectural design that is sensitive to the hillsides. The design and layout of the building will be integrated within the existing topography of the site and will not visually impact the views of nearby properties. The proposed home will not have a negative impact to neighboring residences viewsheds since the property is located on a much lower pad level than nearby properties. The building’s architectural design accentuates simplicity of line and form, articulated through massing treatment and incorporates detailed design elements that complies with the City’s Design Guidelines where architectural design should accentuate simplicity of line and form, restrained and understated elegance, as opposed to the overly ornate or monumental [City’s Design Guidelines A. Site Planning (2) and B. Architecture (2)]. All elevations are architecturally treated and strongly articulated along the visible façade [City’s Design Guidelines B. Architecture (3)]. In addition, appropriate screening and integration of the home to the natural environment is accomplished by providing a variety of groundcover, shrubs, and trees throughout the site. The Project complies with all development standards of the Low Density Residential zoning district by meeting all development standards such as required setbacks, building height, and lot coverage. The project site is not part of any theme area, specific plan, community plan, boulevard or planned development. 2. The design and layout of the proposed development will not interfere with the use and enjoyment of neighboring existing or future developments, and will not create traffic or pedestrian hazards: The proposed single-family house will not interfere with the use and enjoyment of neighboring existing or future developments because the use 4.1.b Packet Pg. 120 Resolution No. 2020-31 4 will not significantly generate any traffic, parking, noise, lighting, view or other impacts onto surrounding residences and adjacent right -of-ways. In addition, no protected trees exist on site. The proposed single-family house will not interfere with vehicular or pedestrian movements, such as access or other functional requirements of a single-family home because it complies with the requirements for driveway widths and grades, exceeds the minimum number of off-street parking spaces, and the circular driveway design allows vehicles to enter and exit the property in a more efficient manner. 3. The architectural design of the proposed development is compatible with the character of the surrounding neighborhood and will maintain and enhance the harmonious, orderly and attractive development contempla ted by Chapter 22.48: Development Review Standards, the City’s Design Guidelines, the City's General Plan, or any applicable specific plan: The proposed single family residence was redesigned with a two-story structure in a contemporary style of architecture to be compatible with the character of the surrounding neighborhood. The use of a single -family home fits more appropriately with the fabric of the surrounding area in comparison to other potential land use options such as multi-family residential or commercial. The City’s General Plan Policy LU-P-56 requires that residential development be compatible with the prevailing character of the surrounding neighborhood in terms of building scale, density, massing, and design. The City’s General Plan Goal CC-G-4 also requires the preservation of the scale and character of existing residential neighborhoods and ensure sensitive transitions between densities and uses. The City’s Design Guidelines Architecture (1) requires compatibility with the surrounding character including harmonious building style, form, size, color, material and roofline. The proposed two story single family residence is comparable in mass and scale to the surrounding neighborhood. The building’s design theme is simple with incorporation of variable roof heights, movement along the street facing elevation, and utilization of large vertical and horizontal window surfaces. The architectural design theme will be duplicated on all of the building’s elevations to provide a pleasing visual appearance form multiple vantage points. The Project minimizes negative impacts on nearby uses since the house will not block existing viewsheds from nearby properties. In sum, the Project fits the character of the neighborhood on which it is proposed. 4. The design of the proposed development will provide a desirable environment for its occupants and visiting public as well as its neighbors through good aesthetic use of materials, texture, color, and will remain aesthetically appealing: 4.1.b Packet Pg. 121 Resolution No. 2020-31 5 The design of the new single-family home is a contemporary style of architecture. Variation in the building elements are achieved through the utilization of varying enhanced architectural features and building materials as discussed in the previous findings. The architectural features utilize a variety of building materials such as stucco, ledgestone and wood siding, metal roof, and cable railing. Also, landscaping is integrated into the site to complement the massing of the house and blend in with neighboring homes and the natural environment of the site in order to maintain a desirable environment. The scale and proportions of the proposed home are well balances and appropriate for the site. 5. The proposed development will not be detrimental to public health, safety or welfare or materially injurious (e.g., negative effect on property values or resale(s) of property) to the properties or improvements in the vicinity: Before the issuance of any City permits, the proposed project is required to comply with all conditions within the approved resolution, and the Building and Safety Division and Public Works Departments requirements. Through the permit and inspection process, the referenced agencies will ensure that the proposed project is not detrimental to the public health, safety or welfare or materially injurious to the properties or improvements in the vicinity. 6. The proposed project has been reviewed in compliance with the provisions of the California Environmental Quality Act (CEQA): The proposed single family residence is categorially exempt from the California Environmental Quality Act (CEQA), as prescribed under CEQA Guidelines Sections 15303(a) (construction of a new single-family residence) and 15061(b)(3) in that “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” The modification will rectify an existing inconsistency between the General Plan and Zoning Maps, and allow for development of an underutilized parcel. Therefore, no further environmental review is required. Based on the findings and conclusions set forth herein and as prescribed under DBMC Section 22.48, this City Council hereby finds and approves the Development Review, subject to the following conditions, and the attached Standard Conditions of Approval: 1. This Development Review approval shall be null and void unless the Zone Change is approved. 2. All on-site utilities shall be placed underground at the time of development. 3. All existing landscaping and public improvements damaged during 4.1.b Packet Pg. 122 Resolution No. 2020-31 6 construction shall be repaired or replaced upon project completion. 4. Development shall substantially comply with the plans and documents presented to the City Council at the public hearing. 5. Prior to building permit issuance, landscape and irrigation plans shall be reviewed and approved by the City’s Consulting Landscape Architect and shall comply with the updated Water Efficient Landscaping Ordinance. 6. The property owner shall record a deed disclosure with the Los Angeles County Recorder’s Office informing future purchasers that the subject property is potentially located within an air quality sensitive receptor area due to its proximity to the SR 57 Freeway. The property owner shall submit a conformed copy of the recorded deed disclosure to the City prior to the issuance of building permits. 7. Standard Conditions. The applicant shall comply with the standard development conditions attached hereto. The City Council shall: a. Certify to the adoption of this Resolution; and b. Forthwith transmit a certified copy of this Resolution to James Chin Chou, 1359 Bentley Court, West Covina, CA 91791. PASSED, APPROVED AND ADOPTED this 21st day of July, 2020. ____________________________ Steve Tye, Mayor ATTEST: I, Kristina Santana, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Resolution was passed, approved and adopted at a regular meeting of the City Council of the City of Diamond Bar held on the 21st day of July, 2020, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ___________________________ Kristina Santana, City Clerk 4.1.b Packet Pg. 123 Resolution No. 2020-31 7 CC Resolution No. 2020-XX COMMUNITY DEVELOPMENT DEPARTMENT STANDARD CONDITIONS RESIDENTIAL NEW STRUCTURE PROJECT #: Development Review No. PL2015-253 SUBJECT: To construct a new 4,333 square-foot, two-story single-family residence with an attached 748 square-foot three-car garage PROPERTY James Chin Chou (Trustee) OWNER: 1359 Bentley Court West Covina, CA 91791 APPLICANT: Creative Design Associates 17528 Rowland Street, 2nd Floor City of Industry, CA 91748 LOCATION: 1111 N. Diamond Bar Blvd., Diamond Bar, CA 91765 ALL OF THE FOLLOWING CONDITIONS APPLY TO YOUR PROJECT. APPLICANT SHALL CONTACT THE PLANNING DIVISION AT (909) 839-7030, FOR COMPLIANCE WITH THE FOLLOWING CONDITIONS: A. GENERAL REQUIREMENTS 1. The applicant shall defend, indemnify, and hold harmless the City, and its officers, agents and employees, from any claim, action, or proceeding to attack, set-aside, void or annul, the approval of Development Review No. PL2015-253 brought within the time period provided by Government Code Section 66499.37. In the event the city and/or its officers, agents and employees are made a party of any such action: (a) Applicant shall provide a defense to the City defendants or at the City's option reimburse the City its costs of defense, including reasonable attorneys fees, incurred in defense of such claims. 4.1.b Packet Pg. 124 Resolution No. 2020-31 8 CC Resolution No. 2020-XX (b) Applicant shall promptly pay any final judgment rendered against the City defendants. The City shall promptly notify the applicant of any claim, action of proceeding, and shall cooperate fully in the defense thereof. 2. This approval shall not be effective for any purpose until the applicant and owner of the property involved have filed, within twenty-one (21) days of approval of this Development Review No. PL2015-253, at the City of Diamond Bar Community Development Department, their affidavit stating that they are aware of and agree to accept all the conditions of this approval. Further, this approval shall not be effective until the applicants pay remaining City processing fees, school fees and fees for the review of submitted reports. 3. All designers, architects, engineers, and contractors associated with this project shall obtain a Diamond Bar Business License; and a zoning approval for those businesses located in Diamond Bar. 4. Signed copies of Planning Commission Resolution No. 2020-15, Standard Conditions, and all environmental mitigations shall be included on the plans (full size). The sheet(s) are for information only to all parties involved in the construction/grading activities and are not required to be wet sealed/stamped by a licensed Engineer/Architect. 5. Prior to the plan check, revised site plans and building elevations incorporating all Conditions of Approval shall be submitted for Planning Division review and approval. 6. Prior to any use of the project site or business activity being commenced thereon, all conditions of approval shall be completed. 7. The project site shall be maintained and operated in full compliance with the conditions of approval and all laws, or other applicable regulations. 8. Approval of this request shall not waive compliance with all sections of the Development Code, all other applicable City Ordinances, and any applicable Specific Plan in effect at the time of building permit issuance. 9. All site, grading, landscape/irrigation, and roof plans, and elevation plans shall be coordinated for consistency prior to issuance of City permits (such as grading, tree removal, encroachment, building, etc.,) or approved us e has commenced, whichever comes first. 10. The property owner/applicant shall remove the public hearing notice board within three days of this project's approval. 4.1.b Packet Pg. 125 Resolution No. 2020-31 9 CC Resolution No. 2020-XX 11. The applicant shall comply with the requirements of City Planning, Building and Safety Divisions, Public Works Department, and the Fire Department. 12. Prior to issuance of building permits, the applicant shall record, and provide the City with a conformed recorded copy of, a Covenant and Agreement or similar document in a form approved by the City At torney, which restricts the rental of rooms or other portions of the property under two or more separate agreements and prohibits use of the property as a boarding or rooming house, except to the extent otherwise permitted by the Diamond Bar Municipal Code or applicable state or federal law. B. FEES/DEPOSITS 1. Applicant shall pay development fees (including but not limited to Planning, Building and Safety Divisions, Public Works Department and Mitigation Monitoring) at the established rates, prior to issuance of building or grading permit (whichever comes first), as required by the City. School fees as required shall be paid prior to the issuance of building permit. In addition, the applicant shall pay all remaining prorated City project review and p rocessing fees prior to issuance of grading or building permit, whichever comes first. 2. Prior to any plan check, all deposit accounts for the processing of this project shall have no deficits. C. TIME LIMITS 1. The approval of Development Review No. PL2015-253 expires within two years from the date of approval if the use has not been exercised as def ined per Diamond Bar Municipal Code (DBMC) Section 22.66.050 (b)(1). In accordance with DBMC Section 22.60.050(c), the applicant may request, in writing, a one-year time extension for City Council consideration. Such a request must be submitted to the Planning Division prior to the expiration date and be accompanied by the review fee in accordance with the fee schedule in effect at the time of submittal. D. SITE DEVELOPMENT 1. This approval is to construct a new 4,333 square-foot, two-story single-family residence with an attached 748 square-foot three-car garage at 1111 N. Diamond Bar Blvd., as described in the staff report and depicted on the approved plans on file with the Planning Division, subject to the conditions listed herein, and the development code regulations. 2. The construction documents submitted for plan check shall be in substantial compliance with the architectural plans approved by the Planning Commission, as modified pursuant to the conditions below. If the plan check 4.1.b Packet Pg. 126 Resolution No. 2020-31 10 CC Resolution No. 2020-XX submittal is not in substantial compliance with the approved Development Review submittal, the plans may require further staff review and re-notification of the surrounding property owners, which may delay the project and entail additional fees. 3. To ensure compliance with the provisions of the City Council approval, a final inspection is required from the Planning Division when work for any phase of the project has been completed. The applicant shall inform the Planning Division and schedule an appointment for such an inspection. 4. The above conditions shall run with the land and shall be binding upon all future owners, operators, or successors thereto of the property. Non - compliance with any condition of approval or mitigation measure imposed as a condition of the approval shall constitute a violation of the City’s Development Code. Violations may be enforced in accordance with the provisions of the Development Code. 5. Failure to comply with any of the conditions set forth above or as subsequently amended in writing by the City, may result in failure to obtain a building final and/or a certificate of occupancy until full compliance is reached. The City’s requirement for full compliance may require minor corrections and/or complete demolition of a non-compliant improvement, regardless of costs incurred where the project does not comply with design requirements and approvals that the applicant agreed to when permits were pulled to construct the project. 6. The project site shall be developed and maintained in substantial conformance with the approved plans submitted to, approved, and amended herein by the Planning Commission, on file with the Planning Division, the condition s contained herein, and the Development Code regulations. 7. All ground-mounted utility appurtenances such as transformers, air conditioning condensers, etc., shall be located out of public view and adequately screened through the use of a combination of concrete or masonry walls, berms, and/or landscaping to the satisfaction of the Planning Division. 8. All roof-mounted equipment shall be screened from public view. 9. All structures, including walls, trash enclosures, canopies, etc., shall be maintained in a structurally sound, safe manner with a clean, orderly appearance. All graffiti shall be removed within 72 hours by the property owners/occupant. 10. No occupancy permit shall be granted until all improvements required by this approval have been properly constructed, inspected, and approved. 4.1.b Packet Pg. 127 Resolution No. 2020-31 11 CC Resolution No. 2020-XX 11. Prior to issuance of a building permit, the location, size and screening of all building utility service connections, including water, gas, and electric service, fire service, and irrigation connections shall be approved by the Community Development Director. All changes to building utility connections shall be approved by the Community Development Director prior to construction. Building utility connections shall be located, sized and screened in such a manner that they have the least possible impact on the design of the building and site. The architect of record shall be directly involved in the design and placement of all site and building service connections and shall sign all plans submitted to the City which located, size and/or screen utility connections. 12. Additional plant materials may be required by the Community Development Director and shall be planted proper to final occupancy in order to screen utility connections, valves, backflow devices, and all above ground appurtenances, etc., to the satisfaction of the Community Development Director. This determination shall be made in the field after all screen utility connections, valves, backflow devices, and all above ground appurtenances, etc. have been installed and inspected. E. SOLID WASTE 1. The site shall be maintained in a condition, which is free of debris both during and after the construction, addition, or implementation of the entitlement approved herein. The removal of all trash, debris, and refuse, whether during or subsequent to construction shall be done only by the property owner, applicant or by a duly permitted waste contractor, who has been authorized by the City to provide collection, transportation, and disposal of solid waste from residential, commercial, construction, and industrial areas within the City. It shall be the applicant's obligation to ensure that the waste contractor used has obtained permits from the City of Diamond Bar to provide such services. 2. Mandatory solid waste disposal services shall be provided by the City franchised waste hauler to all parcels/lots or uses affected by approval of this project. APPLICANT SHALL CONTACT THE PUBLIC WORKS DEPARTMENT, (909) 839-7040, FOR COMPLIANCE WITH THE FOLLOWING CONDITIONS: A. GENERAL 1. The mailbox shall be installed on the property so that daily mail trucks must enter the driveway to deliver mail. 2. The driveway shall be kept clear to allow daily mail delivery and any other scheduled delivery to access the property and maneuver appropriately to exit the property front-end first onto Diamond Bar Blvd. 4.1.b Packet Pg. 128 Resolution No. 2020-31 12 CC Resolution No. 2020-XX 3. An Erosion Control Plan shall be submitted concurrently with the grading plan clearly detailing erosion control measures. These measures shall be implemented during construction. The erosion control plan shall conform to national Pollutant Discharge Elimination System (NPDES) standards and incorporate the appropriate Best Management Practices (BMP’s) as specified in the Storm Water BMP Certification. For construction activity which disturbs one acre or greater, a Storm Water Pollution Prevention Plan (SWPPP) will be needed. 4. Pursuant to NPDES Permit (CAS004001) for MS4 Discharges within the Coastal Watershed of Los Angeles County (Order No. R4-2012-0175), a new single-family hillside home development project shall include mitigation measures to: (i) Conserve natural areas; (ii) Protect slopes and channels; (iii) Provide storm drain system stenciling and signage; (iv) Divert roof runoff to vegetated areas before discharge unless the diversion would result in slope instability; and (v) Direct surface flow to vegetated areas before discharge, unless the diversion would result in slope instability. These mitigation measures shall be shown on the grading plan and implemented during construction. 5. Grading and construction activities and the transportation of equipment and materials and operation of heavy grading equipment shall be limited to between the hours of 7:00 a.m. and 5:00 p.m., Monday through Saturday. Dust generated by grading and construction activities shall be reduced by watering the soil prior to and during the activities and in accordance with South Coast Air Quality Management District Rule 402 and Rule 403. Reclaimed water shall be used whenever possible. Additionally, all construction equipment shall be properly muffled to reduce noise levels. B. SOILS REPORT/GRADING/RETAINING WALLS 1. Prior to or concurrent with grading plan submittal, a geotechnical report prepared by a Geotechnical Engineer, licensed by the State of California, shall be submitted by the applicant for approval by the City. 2. The applicant shall submit grading plans prepared by a Civil Engineer, licensed by the State of California, prepared in accordance with the City’s requirements for the City’s review and approval. A list of requirements for 4.1.b Packet Pg. 129 Resolution No. 2020-31 13 CC Resolution No. 2020-XX grading plan check is available from the Public Works Department. All grading (cut and fill) calculations shall be submitted to the City concurrently with the grading plan. 3. Finished slopes shall conform to City Code Section 22.22.080-Grading. 4. All easements and flood hazard areas shall be clearly identified on the grading plan. 5. The grading plan shall show the location of any retaining walls and the elevations of the top of wall/footing/retaining and the finished grade on both sides of the retaining wall. Construction details for retaining walls shall be shown on the grading plan. Calculations and details of retaining walls shall be submitted to the Building and Safety Division for review and approval. 6. All equipment staging areas shall be located on the project site. Staging area, including material stockpile and equipment storage are a, shall be enclosed within a six foot-high chain link fence. All access points in the defense shall be locked whenever the construction site is not supervised. 7. Grading of the subject property shall be in accordance with the California Building Code, City Grading Ordinance, Hillside Management Ordinance and acceptable grading practices. 8. The maximum grade of driveways serving building pad areas shall be 15 percent. Driveways with a slope of 15 percent shall incorporate grooves for traction into the construction as required by the City Engineer. 9. All slopes shall be seeded per landscape plan and/or fuel modification plan with native grasses or planted with ground cover, shrubs, and trees for erosion control upon completion of grading or some other alternative method of erosion control shall be completed to the satisfaction of the City Engineer and a permanent irrigation system shall be installed. 10. A pre-construction meeting shall be held at the project site with the grading contractor, applicant, and city grading inspector at least 48 hours prior to commencing grading operations. 11. Rough grade certification by project soils and civil engineers and the as - graded geotechnical report shall be submitted for review and approval prior to issuance of building permits for the foundation of the residential structure. Retaining wall permits may be issued without a rough grade certificate. 12. Final grade certifications by project soils and civil engineers shall be submitted to the Public Works Department prior to the issuance of any project final inspections/certificate of occupancy, respectively. 4.1.b Packet Pg. 130 Resolution No. 2020-31 14 CC Resolution No. 2020-XX C. DRAINAGE 1. Detailed drainage system information of the lot with careful attention to any flood hazard area shall be submitted. All drainage/runoff from the development shall be conveyed from the site to the natural drainage course. No on-site drainage shall be conveyed to adjacent parcels, unless that is the natural drainage course. 2. Prior to the issuance of a grading permit, a complete hydrology and h ydraulic study shall be prepared by a Civil Engineer registered in the State of California to the satisfaction of the City Engineer and Los Angeles Public Works Department. D. OFF-SITE STREET IMPROVEMENTS 1. All public improvements shall be approved by the City Engineer, constructed with an encroachment permit issued by the Public Works Department, and completed prior to final inspection/certificate of occupancy issuance. 2. All driveway approaches shall be constructed in accordance with current American Public Works Association (APWA) standard plan 110-2 Type C. 3. All public drive approaches and sidewalks shall be constructed with a minimum of 2500 PSI concrete. 4. The applicant shall replace and record any centerline ties and monuments that are removed as part of this construction with the Los Angeles County Public Works Survey Division. 5. The applicant shall replace and record any centerline ties and monuments that are removed as part of this construction with the Los Angeles County Public Works Survey Division. E. UTILITIES 1. Easements, satisfactory to the City Engineer and the utility companies, for public utility and public service purposes shall be offered and shown on the detailed site plan for dedication to the City or affected utility company. 2. Will Serve Letters from all utilities such as, but not limited to, phone, gas, water, electric, and cable, shall be submitted to the City stating that adequate facilities are or will be available to serve the proposed project. 3. Applicant shall relocate and underground any existing onsite utilities to the satisfaction of the City Engineer and the respective utility owner. 4.1.b Packet Pg. 131 Resolution No. 2020-31 15 CC Resolution No. 2020-XX 4. Underground utilities shall not be constructed within the drop line of any mature tree except as approved by a registered arborist. F. SEWERS/SEPTIC TANK 1. Applicant shall obtain connection permit(s) from the City and County Sanitation District prior to issuance of building permits. 2. Applicant, at applicant’s sole cost and expense, shall construct the sewer system in accordance with the City, Los Angeles County Public Works Division. Sewer plans shall be submitted to the Building and Safety Division for review and approval by the City. APPLICANT SHALL CONTACT THE BUILDING AND SAFETY DIVISION, (909) 839-7020, FOR COMPLIANCE WITH THE FOLLOWING CONDITIONS: A. GENERAL CONDITIONS 1. At the time of plan check submittal, plans and construction shall conform to current State and Local Building Code requirements and all other applicable construction codes, ordinances and regulations in effect. 2. Provisions for CAL Green shall be implemented onto plans and certification shall be provided by a third party as required by the Building Division. Specific water, waste, low VOC, and related conservation measures shall be shown on plans. Construction shall conform to the current CAL Green Code. B. PLAN CHECK – ITEMS TO BE ADDRESSED PRIOR TO PLAN APPROVAL 1. The minimum design load for wind in this area is 110 M.P.H. exposures “C” and the site is within seismic zone D or E. The applicant shall submit drawings and calculations prepared by a California State licensed Architect/Engineer with wet stamp and signature. 2. This project shall comply with the energy conservation requirements of the State of California Energy Commission. All lighting shall be high efficacy or equivalent per the current California Energy Code 119 and 150(k). 3. Indoor air quality shall be provided consistent with ASHRAE 62.2 as required per California Energy Code 150(o). 4. Public Works/Engineering Department is required to review and approve grading plans that clearly show all finish elevations, drainage, and retaining wall(s) locations. These plans shall be consistent with the site plan submitted to the Building and Safety Division. 4.1.b Packet Pg. 132 Resolution No. 2020-31 16 CC Resolution No. 2020-XX 5. “Separate permits are required for retaining walls” and shall be noted on plans. 6. All balconies shall be designed for 60lb/ft live load. 7. All easements shall be shown on the site plan. 8. All retaining walls shall be separately submitted to the Building and Safety and Public Works/Engineering Departments for review and approval. 9. A soils report is required per CBC 1803 and all recommendations of the soils report shall be adhered to. 10. Light and ventilation shall comply with CBC 1203 and 1205. 11. A soils report is required per CBC 1803 and all recommendations of the soils report shall be adhered to. 12. Light and ventilation shall comply with CBC 1203 and 1205. 13. An occupancy separation shall be provided between the dwelling unit and garage. 14. The wood deck shall be clarified whether it is on-grade or raised. C. PERMIT – ITEMS REQUIRED PRIOR TO BUILDING PERMIT ISSUANCE 1. Solid waste management of construction material shall incorporate recycling material collection per Diamond Bar Municipal Code 8.16 of Title 8. The contractor shall complete all required forms and pay applicable deposits prior to permit. 2. Prior to building permit issuance, all school district fees shall be paid. Please obtain a form from the Building and Safety Division to take directly to the school district. 3. Submit grading plans clearly showing all finish elevations, drainage, and retaining wall locations. No building permits shall be issued prior to submitting a pad certification. 4. Los Angeles County Fire Department approval is required prior to permit issuance. 5. Approval from the County Sanitation District is required for the new sewer hook up. 4.1.b Packet Pg. 133 Resolution No. 2020-31 17 CC Resolution No. 2020-XX 6. SCAQMD notification is required at least 10 days prior to any demolition. Proof of notification is required at permit issuance. 7. All workers on the job shall be covered by workman’s compensation insurance under a licensed general contractor. Any changes to the contractor shall be updated on the building permit. D. CONSTRUCTION – CONDITIONS REQUIRED DURING CONSTRUCTION 1. Fire sprinklers are required for new single family dwellings (CRC R313.2). Sprinklers shall be approved by LA County Fire Department prior to installation and shall be inspected at framing stage and finalization of construction. 2. Occupancy of the facilities shall not commence until all California Building Code and State Fire Marshal regulations have been met. The buildings shall be inspected for compliance prior to occupancy. 3. Every permit issued by the building official under the provisions of this Code shall expire and become null and void unless the work authorized by such permit is commenced within one-hundred-eighty (180) days after permit issuance, and if a successful inspection has not been obta ined from the building official within one-hundred-eighty (180) days from the date of permit issuance or the last successful inspection. A successful inspection shall mean a documented passed inspection by the city building inspector as outlined in Section 110.6. 4. The project shall be protected by a construction fence to the satisfaction of the Building Official. All fencing shall be view obstructing with opaque surfaces. 5. All structures and property shall be maintained in a safe and clean manner during construction. The property shall be free of debris, trash, and weeds. 6. All equipment staging areas shall be maintained in an orderly manner and screened behind a minimum 6-foot high fence. 7. A height and setback survey may be required at completion of framing and foundation construction phases respectively. 8. The project shall be protected by a construction fence and shall comply with the NPDES & BMP requirements (sand bags, etc.). 9. The location of property lines and building pad may require a surety to be determined by the building inspection during foundation and/or frame inspection. 4.1.b Packet Pg. 134 Resolution No. 2020-31 18 CC Resolution No. 2020-XX 10. The applicant shall contact Dig Alert and have underground utility locations marked by the utility companies prior to any excavation. Contact Dig Alert by dialing 811 or their website at www.digalert.org. 11. Any changes or deviation from approved plans during the course of construction shall be approved by the City prior to proceeding with any work. 12. All glazing in hazardous locations shall be labeled as safety glass. The labeling shall be visible for inspection. 13. Carbon monoxide detectors are required in halls leading to sleeping rooms per CRC R315. 14. Drainage patterns shall match the approved grading/drainage plan from the Public Works/Engineering Department. Surface water shall drain away from the building at a 2% minimum slope. The final as -built conditions shall match the grading/drainage plan or otherwise approved as -built grading/drainage plan. 15. Decks, roofs, and other flat surfaces shall slope at least 1/4”/ft with approved and listed water proofing material. Guardrails shall be provided for these surfaces at least 42” minimum in height, 4” maximum spacing between rails, and capable of resisting at least 20 pounds per lineal foot of lateral load. 16. Special inspections and structural observation will be required in conformance with CBC 1704 to 1709. 17. Eaves shall be at least 2 feet from the property line and shall be fully enclosed and protected/fire rated. County of Los Angeles Fire Department (909) 620-2402 – 1. Submit two sets of Architectural Drawings when ready for plan check with the following information: • Show all existing public fire hydrants on the site plan. Include the location of all public fire hydrants within 600 feet of the lot frontage on both sides of the street. Specify size of fire hydrant(s) and dimension(s) to property lines. Additional fire hydrant requirements may be necessary after this information is provided. • A minimum five-foot wide approved firefighter access walkway leading from the fire department access road to all required openings in the building’s exterior walls shall be provided for firefighting and rescue purposes. Fire Code 504.1. 4.1.b Packet Pg. 135 Resolution No. 2020-31 19 CC Resolution No. 2020-XX 2. The applicant is required to have the Information of Fire Flow Availability for Building Permit (Form 195) completed by the Water Purveyor. 3. All development shall be constructed with adequate water supply and pressure for all proposed development in compliance with standards established by the fire marshal. END 4.1.b Packet Pg. 136 4.1.cPacket Pg. 137 4.1.cPacket Pg. 138 4.1.cPacket Pg. 139 4.1.cPacket Pg. 140 4.1.cPacket Pg. 141 4.1.cPacket Pg. 142 4.1.cPacket Pg. 143 4.1.cPacket Pg. 144 4.1.cPacket Pg. 145 4.1.cPacket Pg. 146 4.1.cPacket Pg. 147 4.1.cPacket Pg. 148 4.1.cPacket Pg. 149 4.1.cPacket Pg. 150 4.1.cPacket Pg. 151 4.1.cPacket Pg. 152 MINUTES OF THE CITY OF DIAMOND BAR MEETING OF THE PLANNING COMMISSION JUNE 23, 2020 CONSISTENT WITH THE GOVERNOR’S LATEST EXECUTIVE ORDER TO STAY AT HOME, AVOID GATHERINGS AND MAINTAIN SOCIAL DISTANCING, THIS MEETING WAS CONDUCTED TELEPHONICALLY AND PLANNING COMMISSIONERS, CITY STAFF AND MEMBERS OF THE PUBLIC PARTICIPATED VIA TELECONFERENCE. CALL TO ORDER: Chair/Mok called the meeting to order at 6:45 p.m. PLEDGE OF ALLEGIANCE: Commissioner Garg led the Pledge of Allegiance. 1. ROLL CALL: Commissioners: Naila Barlas, Mahendra Garg, Raymond Wolfe, Vice Chairperson William Rawlings, and Chairperson Kevin Mok. Staff Members Participating: Greg Gubman, Community Development Director; James Eggart, Assistant City Attorney; Grace Lee, Senior Planner; May Nakajima, Associate Planner; Natalie T. Espinoza, Associate Planner; and, Stella Marquez, Administrative Coordinator 2. PUBLIC COMMENTS: None 3. APPROVAL OF AGENDA: As presented. 4. CONSENT CALENDAR: 4.1 Minutes – Regular Meeting – May 26, 2020. C/Wolfe moved, C/Barlas seconded, to approve the May 26, 2020, Meeting Minutes as corrected. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Barlas, Garg, Wolfe, VC/Rawlings, Chair/Mok NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None 5. OLD BUSINESS: None 6. NEW BUSINESS: None 4.1.d Packet Pg. 153 ________________________________________________________________________ JUNE 23, 2020 PAGE 2 PLANNING COMMISSION ________________________________________________________________________ 7. (CONTINUED) PUBLIC HEARING(S): 7.1 ZONE CHANGE AND DEVELOPMENT REVIEW NO. PL2015-253 – Under the authority of DBMC Sections 22.48 and 22.70, the property owners and applicant requested a Zone Change to modify the existing zoning district from Neighborhood Commercial (C-1) to Low Density Residential (RL) to be consistent with the General Plan land use designation, and approval of Development Review application to construct a new 4,333 square-foot, two-story single family residence measuring 28’-8” high on an 11,225 square-foot (0.26 acre) undeveloped vacant lot. (Continued from March 24, 2020) PROJECT ADDRESS: 1111 Diamond Bar Boulevard Diamond Bar, CA 91765 PROPERTY OWNERS: James Chin Chou 1359 Bentley Court West Covina, CA 91791 APPLICANT: Creative Design Associates 17528 Rowland Street, 2nd Floor City of Industry, CA 91748 SP/Lee presented staff’s report and requested that the Planning Commission forward a recommendation to the City Council to approve Zone Change and Development Review No. PL2015-253. C/Garg asked if it was true that the proposed residence would be the only residence to have access from Diamond Bar Boulevard. He also wanted to know what kind of facility is suitable for this site since both residential and commercial projects were denied and/or withdrawn. He also commented that if the project was approved, there is no entry from Diamond Bar Boulevard proceeding north and if true, that would be a restriction on the proposal. When he visited the site, he was unable to find parking for his vehicle and parked along the side of Diamond Bar Boulevard and turned on his hazard light. In about five minutes, a Sheriff’s car approached with red lights flashing and stopped behind his car to tell him that stopping along the street at that location was not allowed. SP/Lee responded to C/Garg that at the northern end of Diamond Bar Boulevard this would be the only single family home with direct access from Diamond Bar Boulevard. There is a condominium project just north of the project site that takes access from Diamond Bar Boulevard . With respect to the question about the best use for this parcel, staff is recommending the 4.1.d Packet Pg. 154 ________________________________________________________________________ JUNE 23, 2020 PAGE 3 PLANNING COMMISSION ________________________________________________________________________ single family residential use because it is the least intense in terms of parking and traffic impacts. Parking is not allowed on Diamond Bar Boulevard and residents and guests would have to park on the private property. A three -car garage and a circular driveway are proposed and there are no proposals for on-street parking. The site is accessible to westbound traffic only, because the landscaped median prevents access for eastbound traffic. Chair/Mok commented regarding access that traffic proceeding northbound toward Temple Avenue seeking access to the project site would have to make a U-turn at the condominium development on Soltaire Street, where U-turns are permissible. . However, there is no U-turn allowed at Temple Avenue. Chair/Mok opened the public hearing. Ken Lee, owner’s representative and land use consultant; Kenneth Pang, Project Architect, Creative Design Associates; Eric Freeman, ML Design; Jack Lee, Cal Land Engineering; and Tom Huang, Senior Traffic Engineer, Ganddini Group, the firm that conducted the original traffic study and January update. The project team provided a PowerPoint presentation and discussed the project and its history. Mr. Lee stated that Mr. Chou purchased the property about 10 years ago and the project has evolved from a three -story office building—which, while consistent with the current C-1 zoning, but determined to not be an appropriate use for this location and from a traffic generation standpoint—to a three-story single family proposal. The current proposal is for a two-story project which is appropriate to the configuration and location of the site with a contemporary modern style of architecture, which is more consistent with the surrounding uses, as well as with the General Plan Update land use designation of Low Density Residential. Mr. Lee thanked SP/Lee for her commitment and time over the past 10 years in walking everyone through the evolution and process of this project. C/Barlas asked for clarification on the number of vehicles the horseshoe- shaped driveway would accommodate and how many cars can be parked at the side of the house. Mr. Pang responded to C/Barlas that the driveway will accommodate up to eight cars plus an additional three cars on the inside of the garage for a total of 11 vehicles on the site at any one time. Chair/Mok said he understood the driveway was not wide enough to accommodate a full-sized waste hauler. Mr. Pang responded that the driveway is 36 feet wide, the width of a three -car garage. In addition, they coordinated with Waste Management, which is able to service the area using a “valet” service which is a smaller dump truck that will come up into the horseshoe driveway and pick up the trash cans from the property. Trash receptacles will not be put on the street. 4.1.d Packet Pg. 155 ________________________________________________________________________ JUNE 23, 2020 PAGE 4 PLANNING COMMISSION ________________________________________________________________________ Douglas Barcon, in reference to the viewshed line-of-sight diagrams prepared by the applicant, felt the angle could have gone much lower and encompass the structure instead of being cut off above the line and wanted to know if a line of sight was from one property and one area. Based on the information that possibly eight cars could be parked on the driveway, unless each of those cars were to enter and exit sequentially, he does not see how they could switch places in line. And, it appears to him that the three cars in front of the garage would have to back out onto Diamond Bar Boulevard unless the driveway is large enough for cars to pass each other. With cars traveling down Diamond Bar Boulevard from Temple Avenue at potentially 45 mph, if someone decided to make a U-turn at Soltaire, it might be difficult to accelerate sufficiently for the short distance to the driveway of the property. Also, in terms of safety, there is a bike lane along the west side of Diamond Bar Boulevard that was not mentioned in the plans, but instead shows bicycles using the sidewalk excluding use of the bike lane. As he previously commented, he looks at this as a project that jumps out and into one’s face to people entering Diamond Bar from Temple Avenue and he would prefer to see the property used for a cell phone tower camouflaged as a windmill that could provide income. Robin Smith said her comments were related to health and her concerns about the risks that have been proven by evaluating the sensitive receptors region, which is any housing located within 500 to 1,000 feet of a heavily trafficked roadway and wonders why this project is categorically exempt from environmental evaluation. Also, she is under the impression that this parcel is still zoned Office Professional. Felino Bautista wanted to know if the project, as presented this evening, speaks to the possibility of afternoon glare onto the freeway and whether the site line was representative of the new proposed design. He questioned vehicle parking. Chair/Mok closed the public hearing. C/Wolfe said he was on the Planning Commission in 2017 and asked for the analysis looking at driver expectations/site distance compared to stopping distance and that question was answered in the traffic report that is attached to staff’s report. They have also redesigned the house to make access easier and, as staff stated, this is the best use for this particular property. There really is not another use unless the property was rezoned to force it into something 4.1.d Packet Pg. 156 ________________________________________________________________________ JUNE 23, 2020 PAGE 5 PLANNING COMMISSION ________________________________________________________________________ that was proposed during public comments. And, a light industrial or commercial use is more intrusive to the driving patterns on the southbound lanes of Diamond Bar Boulevard. C/Wolfe moved to recommend City Council approval of Zone Change and Development Review No. PL2015-253 as proposed by staff. Motion died for lack of a second. C/Barlas said she served on the Planning Commission when the design was completely different and the applicant was asked to redo the traffic study because of concerns about possible afternoon sun glare and because the trash truck could not stop on Diamond Bar Boulevard and these issues have been satisfactorily resolved through the redesign. VC/Rawlings said he does not have the advantage of having been on the Commission when this item was first presented. He has reviewed records and can definitely appreciate the work that has gone into the current project for the space provided. He has concerns about the future of providin g overflow parking because it would be across Soltaire or on Flintlock. He has a lot of respect and admiration for staff, but one area he disagrees with is the impact this project would have on the character of surrounding neighborhoods and he for that reason, is not sure he can support this project at this time. C/Garg said he believes that the Planning staff should look at this project again because there has not been sufficient time for review of the comments the Commission received today. Chair/Mok asked for staff’s response. CDD/Gubman responded to Mr. Barcon’s comments regarding representation of views and how the project would affect certain vantage points that it would depend on whether the Commission wished to have those line of site view angles revisited from different vantage points. In terms of concerns about the left turn pocket at Soltaire and potential conflicts with U-turns and vehicles coming down Temple Avenue, one thing to keep in mind is that this proposal is for a single-family residence and traffic engineering studies for decades have compiled trip generation statistics on different types of land uses . A single family residence typically generates 10 trip ends per day and while there might be some valid concern about speeds on Diamond Bar Boulevard , it is an unrestricted U-turn pocket and he would put potential concerns in that perspective and context. Bike lanes are common features on all of the City’s roadways and motorists must drive defensively and be aware of their surroundings before executing a turning m ovement. With respect to comments about whether a cell tower might be a better use for this site, staff 4.1.d Packet Pg. 157 ________________________________________________________________________ JUNE 23, 2020 PAGE 6 PLANNING COMMISSION ________________________________________________________________________ cannot prescribe what a property owner can do. If a proposal was received for such a use, it would be something that would be considered; however, staff’s recommendation is ultimately based on finding the lowest intensity of use that can be accommodated on this property before the issue of a taking of a property is considered. The City cannot prevent some one who owns property from using it within the restrictions that are established, and zoning for a single-family residence is basically the lowest intensity zoning designation the City has in its menu of land uses. There was a concern raised by Ms. Smith about particulate matter and air quality in that particular area. That may be the case, but to answer the question about CEQA, it is a tool that is used to identify and disclose the impacts of the development proposal on the environment, it is not something that is to be used to assess the impacts of the environment on a use. So the applicability of CEQA is really not to consider whether that surrounding environment is going to be deleterious to the users of that land. It is certainly appropriate if the Commission would like to recommend a condition and it might even be incumbent upon the property owner to include a disclosure on the property title so that future occupants are aware of potential air quality issues that may be associated with its proximity to the freeway and to Diamond Bar Boulevard. The question about whether staff looked into the potential glare onto the freeway, this was a question that was originally raised with the office project and it had to do with larger panes of curtain glass and whether, at certain times of the day, they would reflect sunlight and cause glare onto the freeway. As far as he knows, that issue was not looked at with respect to the current plan, and in looking at the rear elevation of the proposed residence and the fenestration of it, there are relatively small bedroom windows facing that area rather than large panes of storefront sized glass that might warrant further analysis. In this case, he would suggest that the Commission look at the rear elevation and determine whether Commissioners feel that is a concern that warrants additional study. CDD/Gubman further stated that whether this motion to recommend City Council approval should be delayed because of emails and comments received today, that too is at the pleasure of the Commission, but since this item has to go to the City Council anyway for final determination, these correspondences will be entered into the record and additional information will be provided on these comments if called for. If the Commission would prefer to receive more information on these comments before passing on the recommendation, that can be done. However, the alternative is to make the 4.1.d Packet Pg. 158 ________________________________________________________________________ JUNE 23, 2020 PAGE 7 PLANNING COMMISSION ________________________________________________________________________ recommendation based on tonight’s Public Hearing and when staff prepares the record for the City Council meeting all letters, emails and related comments will be made a part of the City Council’s packet. C/Barlas said she was satisfied with CDD/Gubman’s responses and comments and believes his comment for the applicant to record the potential environmental impacts is a good idea and should be included in the motion. She said she is not so concerned about the parking issue because the City has been very proactive regarding potential parking violations. C/Barlas stated that with the addition of a condition that the applicant record the potential environmental impacts due to the proximity of the project to the freeway for future potential buyers, she would recommend City Council approval of Zone Change and Development Review No. PL2015-253 as proposed by staff. Chair/Mok seconded the motion. Chair/Mok said he believes staff has worked hard on this project for the past seven years. Kudos to SP/Lee and Planning staff as well as the efforts of the applicant and project team to address public concerns. The new plans address the front elevation with an additional six feet of softening landscape. The horseshoe driveway addresses ingress/egress concerns and driver’s exiting the property will be able to see southbound traffic on Diamond Bar Boulevard. C/Garg said that he would be in favor of the motion as long as he could be assured that staff would include comments on all correspondence in the City Council presentation. C/Wolfe said that there is a motion that has been seconded and what he just heard from C/Garg was additional add-ins and the vote needs to proceed before another motion is presented. ACA/Eggart responded to C/Wolfe that C/Garg’s comment did not const itute another motion and posed the question to CDD/Gubman. CDD/Gubman reiterated that staff would address all comments received in the City Council report. Chair/Mok called for the vote on C/Wolfe’s motion. As a point of order, C/Wolfe stated that C/Barlas made a substitute motion by adding the condition and Chair/Mok seconded motion, which would therefore be the motion the Commission would vote on instead of his motion because he was not asked if he would agree to insert the condition in his motion . 4.1.d Packet Pg. 159 ________________________________________________________________________ JUNE 23, 2020 PAGE 8 PLANNING COMMISSION ________________________________________________________________________ ACA/Eggart said that C/Wolfe was correct and Chair/Mok called for the vote on C/Barlas’ motion. Motion carried by the following Roll Call vote: AYES: COMMISSIONERS: Barlas, Garg, Wolfe, and Chair/Mok NOES: COMMISSIONERS: VC/Rawlings ABSENT: COMMISSIONERS: None 8. PLANNING COMMISSION COMMENTS/INFORMATIONAL ITEMS: VC/Rawlings said that in spite of his opposition to tonight’s public hearing project, he wanted to thank everyone who has worked on this for these many years. These types of projects are difficult, especially after attempts that have seemed very circuitous, and he thanked the property own er for being so flexible and to the project team that this is and will be a beautiful project. Chair/Mok said he noticed a lot of work being done on the Big Lots building and wondered if there was full occupancy at that site. CDD/Gubman said he has heard through the owner’s representation that they have full occupancy but he does not have a roster of potential tenants. The project was stalled for a time and considering the rate of buildout, it appears they are motivated to get tenants moved in soon. C/Garg asked if the Big Lots building would have multiple tenants or one only and CDD/Gubman responded that there are five tenant spaces in the remodeled building. 9. STAFF COMMENTS/INFORMATIONAL ITEMS: CDD/Gubman said it appears there will be no business for the July 14 th Planning Commission agenda and tentatively, that meeting will be cancelled. In addition, there is nothing pending for the July 28th meeting and staff will keep Commissioners apprised of any changes. CDD/Gubman said that the City received CARES Act money and the City Council supplemented that money with some of the City’s CDBG funds in order to execute a Business Recovery Grant Program to give out $5,000 small grants to 64 businesses in Diamond Bar. At this time he is going through the screening process and the window for applications closes at noon tomorrow. To date, 160 applications have been received and after the application window closes, there will be a lottery . For those businesses that were not selected for the initial round of funding , their lottery numbers will be kept on file for potential future rounds of CARES Act money. 4.1.d Packet Pg. 160 ________________________________________________________________________ JUNE 23, 2020 PAGE 9 PLANNING COMMISSION ________________________________________________________________________ 10. SCHEDULE OF FUTURE EVENTS: As listed in the agenda. ADJOURNMENT: With no further business before the Planning Commission, Chair/Mok adjourned the regular meeting at 8:31 p.m. The foregoing minutes are hereby approved this ____________________________, 2020. Attest: Respectfully Submitted, __________________________________ Greg Gubman Community Development Director _______________________________ Kevin Mok, Chairperson 4.1.d Packet Pg. 161 A2011A201A20123A2014SIDE SETBACK5' - 4"SIDE SETBACK84' - 7 3/4"R E A R S E T B A C K T O B L D G .2 0 ' - 0 "FRONT SETBACK20' - 0"POOLWOOD DECK 3'-0" MAX RETAINING WALL PLUS FENCE WALLCMU FOR A TOTAL 6'-0" MAX HIGH BLOCK WALL FINISHED WITH STUCCO WITH INTERVALS OF WOOD SLATS SEE FENCE WALL (SEE CIVIL)3'-0" MAX RETAINING WALL PLUS FENCE WALLCMU FOR A TOTAL 6'-0" MAX HIGH BLOCK WALL FINISHED WITH STUCCO (SEE CIVIL)3'-0" MAX RETAINING WALL PLUS FENCE WALLCMU FOR A TOTAL 6'-0" MAX HIGH BLOCK WALL FINISHED WITH STUCCO(SEE CIVIL)3'-0" MAX RETAINING WALL PLUS FENCE WALLCMU FOR A TOTAL 6'-0" MAX HIGH BLOCK WALL FINISHED WITH STUCCO (SEE CIVIL)CONC. 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MAX6' - 0"TYP.3' - 4"TYP.2' - 8"WOOD SLATS OR SIMILAR TYP.TYP.0' - 3 1/2"TYP.0' - 0 1/2"BLOCK WALL FINISHED MERLEX STUCCO -P-100 GLACIER WHITE (A BASE) -SEMI-SMOOTH SANTA BARBARA FINISH OR APPROVED EQUAL TO MATCH BLDGPrinted Date:Copyright ® By Creative Design Associates, Inc.C h e c k e d B y D a t e :R e f e r e n c e :C D A P r o j e c t N o.S t a m p :R e v i s i o n s :C l i e n t :P r o j e c t :D r a w i n g T i t l e :D r a w i n g N o. :P r o j e c t N o. :YU-WUCH E NNo. C-25837REN .07-31-21S TATE OFCALIFORNIALICENSEDARCHITE C T P h a s e :D r a w n B y :1/28/2020 10:35:00 AMAS-1011111 RESIDENCESITE PLAN &PROJECT DATACheckerAuthor1907SDJames Chou1111 N. Diamond Bar Blvd, Diamond Bar, CA 91765PROJECT DATAOWNER: JAMES CHOU1359 BENTLEY CT.WEST COVINA, CA 91791626-863-6660ARCHITECT:CREATIVE DESIGN ASSOCIATES17528 ROWLAND ST.CITY OF INDUSTRY, CA 91748626-913-8101CIVIL ENGINEER:CAL LAND ENGINEERING, INC.DBA QUARTECH CONSULTANTS576 E. 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LAMBERT ROAD,BREA, CA 92821 714-671-1050TRAFFIC ENGINEER: GANDDINI GROUP INC550 PARKCENTER DR., #202SANTA ANA, CA 92705 714-795-3100PROJECT TEAMAPPLICABLE CODES:2019 CALIFORNIA RESIDENTIAL BUILDING CODE2019 CALIFORNIA MECHANICAL CODE2019 CALIFORNIA ELECTRICAL CODE2019 CALIFORNIA PLUMBING CODE2019 CALIFORNIA GREEN BUILDINGCODE2019 CALIFORNIA TITLE 24 ENERGY CODE2019 CALIFORNIA FIRE CODESITE VICINITY SHEET INDEXSheetNumberSheet NameAS-101 SITE PLAN & PROJECT DATAT-1 TOPO SURVEYC-1 PRECISE GRADING PLANC-2 PRECISE GRADING PLANC-3 EROSION CONTROL PLANL1 LANDSCAPE CONCEPTUAL PLANL2 LANDSCAPE CONCEPTUAL PLANA101 1ST FLOORA102 2ND FLOORA103 ROOF PLANA201 EXTERIOR ELEVATIONSA202 3D VIEWSA203 3D VIEWS WITH CONTEXTA204 3D VIEWS WITH CONTEXT1" = 10'-0"1SiteNo. Description Date1" = 60'-0"2Site Distance to Freeway1/2" = 1'-0"3FENCE WALL ELEVATION DETAIL4.1.ePacket Pg. 162 4.1.ePacket Pg. 163 4.1.ePacket Pg. 164 4.1.ePacket Pg. 165 4.1.ePacket Pg. 166 20' RE A R S E T B A C K 10' FRONT SETBACK REAR P R O P E R T Y L I N E 11'-0"11'-0"1'-0" 10'-0"10'-0" 30'-0" 6'-0"10'-0" 6'-0" 10'-0"3'-0" 6'-0" 5'-0" 5'-0"27'-0"10'-0" 12'-0" NOTE: DISTANCE TO 57 FWY ±160'. 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TO BE FLUSH WITH SPA AND DECK RAISED SPA, TO BE FLUSH WITH DECK POOL, TO BE LOWER THAN SPA AND FLUSH WITH LOWER CONCRETE DECK POOL INFINITY EDGE INFINITY EDGE SPILL BASIN RAISED GAS BURNING FIREPLACE, TO BE HIGHER THAN DECK RAISED PLANTER LARGE BOULDER FOR SEATING CONCRETE LOWER DECK AND POOL COPING. TO BE LOWER THAN DECK , SPA, AND FIREPLACE FLAGSTONE STEPPERS BALCONY ROOF LINE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LANDSCAPE NOTES ALL IRRIGATED LANDSCAPE WILL COMPLY WITH THE WATER CONSERVATION LANDSCAPE ORDINANCE. MAXIMUM WATER ALLOWANCE FOR THE SITE IS NO GREATER THAN IS 69957 GALLONS PER YEAR (4319 SF LANDSACAPE AREA) SEPARATE PERMITS ARE REQUIRED FOR RETAINING WALLS, POOLS/SPA, BBQ, OUTDOOR FIREPLACE, AND FENCES OVER 6' IN HEIGHT. QUANTITY % PLANT SIZE PERCENTAGES 2 5% 11 29% 25 66% 37 12 3% 401 97% 413 100%COVER IN 2 YEARS TYPE SIZE TREES 48" BOX 36" BOX 24" BOX TOTAL SHRUBS 15 GAL 5 GAL TOTAL GROUNDCOVER 1/06/20 Prepared by: 1"=10'-0" EMERALD D E S I G N 305 N. Harbor Blvd, Suite 222 Fullerton, California 92832 Tel: (714) 680-0417 California License #3098 Email: charles@emeraldladesign.com CD/A Creative Design Associates 17528 E Rowland St. City of Industry, CA 91748 DIAMOND BAR SINGLE FAMILY 1111 N DIAMOND BAR BLVD DIAMOND BAR, CALIFORNIA 91765 Landscape Conceptual Plan SITE REFERENCE PLAN 60 FW Y57 FWYSITE * 4.1.e Packet Pg. 167 1/06/20 Prepared by: 1"=10'-0" EMERALD D E S I G N 305 N. Harbor Blvd, Suite 222 Fullerton, California 92832 Tel: (714) 680-0417 California License #3098 Email: charles@emeraldladesign.com CD/A Creative Design Associates 17528 E Rowland St. City of Industry, CA 91748 DIAMOND BAR SINGLE FAMILY 1111 N DIAMOND BAR BLVD DIAMOND BAR, CALIFORNIA 91765 Landscape Conceptual Plan JUNIPERUS SCOPULORUM 'SKYROCKET' CERCIDIUM 'DESERT MUSEUM' LAGERSTROEMIA 'NATCHEZ' LAURUS NOBILIS 'MONEM' NOLINA RECURVATA OLEA 'WILSONII' ALOE FEROX ZOYSIA TENUIFOLIA AEONIUM ARBOREUM 'ATROPURPUREUM' AGAVE AMERICANA ALOE ARBORESCENS AGAVE ATTENUATA VITIS 'ROGERS RED' DASYLIRION WHEELERI ECHIUM CANDICANS MUHLENBERGIA RIGENS NANDINA 'COMPACTA' SENECIO SERPENS EUPHORBIA 'STICKS ON FIRE' ARBUTUS UNEDOCALISTEMON 'LITTLE JOHN' 4.1.e Packet Pg. 168 +838 FF+837 FF+838.5 FF+837 FFPANTRYPANTRYLINEN70' - 5 1/2"89' - 7"1 8 ' - 1 1 1 /4 "23' - 0 1/2"13' - 11 1/4"22' - 0"11' - 5 3/4"10' - 6 3/4"8' - 8 1/2"11' - 9 3/4"17' - 5 3/4"15' - 11"5' - 11 3/4"7' - 9 3/4"20' - 5 3/4"4' - 0 1/4"32' - 3 3/4"16' - 2 3/4"8' - 3 1/4"1 8 ' - 1 1 1 /4 "1 3 ' - 0 3 /4 "1 3 ' - 4 1 /2 " 5 ' - 6 3 /4 "4' - 2"1' - 6"89' - 7"6' - 8"21' - 7"13' - 4 1/2"6' - 0"12' - 5 1/2"18' - 11 1/2"10' - 6 3/4"FOYER1LIVING ROOM2STUDY3KITCHEN4BEDROOM 183 CAR GARAGE6POWDER RM7WOK RM5Printed Date:Copyright ® By Creative Design Associates, Inc.C h e c k e d B y D a t e :R e f e r e n c e :C D A P r o j e c t N o.S t a m p :R e v i s i o n s :C l i e n t :P r o j e c t :D r a w i n g T i t l e :D r a w i n g N o. :P r o j e c t N o. :YU-WUCH E NNo. C-25837REN .07-31-21S TATE OFCALIFORNIALICENSEDARCHITE C T P h a s e :D r a w n B y :1/28/2020 10:33:51 AMA1011111 RESIDENCE1ST FLOORKPKP1907SDJames Chou1111 N. 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Diamond Bar Blvd, Diamond Bar, CA 917651/8" = 1'-0"1East1/8" = 1'-0"2West1/8" = 1'-0"3South1/8" = 1'-0"4NorthEXTERIOR KEYNOTESKey Value Keynote TextEL001 WALL FINISH - MERLEX STUCCO - P-100 GLACIER WHITE (A BASE) - SEMI-SMOOTH SANTA BARBARAFINISH OR APPROVED EQUALEL002 STONE VENEER - CULTURED STONE - GRAY SOUTHERN LEDGESTONE OR APPROVED EQUALEL003 DOOR - PIVOT DOOR COMPANY - SYDNEY PRE-BUILT DOOR - 49 1/2" X 97 3/4" - WALNUT FINISH ORAPPROVED EQUALEL004 DOOR - NANAWALL CLIMA CLEAR - FOLDING - CLEAR ANODIZED FINISH OR APPROVED EQUALEL005 WINDOW: MILGARD: QUIETLINE SERIES SLIDING WINDOW WITH MIN. STC 40, WHITE FRAME, LOW-ECLEAR GLASS OR APPROVED EQUALEL006 PATIO DOOR: JELD-WEN: PREMIUM ATLANTIC VINYL SWINGING PATIO DOOR, WHITE FRAME, LOW-ECLEAR GLASS, NO GRILLES, OR APPROVED EQUALEL007 METAL CABLE RAILING: FEENEY DESIGNRAIL: STANDARD POSTS, SURFACE MOUNT, SILVER FRAMECOLORS W/ RECTAGULAR TOP RAIL, HORIZONTAL CABLES INFILL OR APPROVED EQUALEL008 GARAGE DOOR - OVERHEAD DOOR MODERN ALUMINUM - MODEL 511 - IMPACT FROSTEDPOLYCARBONATE - CLEAR ANODIZED FINISH OR APPROVED EQUALEL009 FIBER CEMENT SIDING - NICHIHA VINTAGEWOOD WOOD SERIES S OR APPROVED EQUALEL010 METAL WALL/ROOF PANEL: AEP SPAN SUPERSPANFINISH: DURA TECH MX COOL METALLIC SILVER OR APPROVED EQUALEL011 CONCRETE LOOK FINISH: WESTCOAT TEXTURE CRETETOPCOAT COLOR: LIQUID COLORANT TC40 SMOKE308 OR APPROVED EQUALEL012 LIGHTING - VISA LIGHTING - OW1464 -WRAP L30K-L - HTHR - OR APPROVED EQUALNo. Description Date4.1.ePacket Pg. 172 Printed Date:Copyright ® By Creative Design Associates, Inc.C h e c k e d B y D a t e :R e f e r e n c e :C D A P r o j e c t N o.S t a m p :R e v i s i o n s :C l i e n t :P r o j e c t :D r a w i n g T i t l e :D r a w i n g N o. :P r o j e c t N o. :YU-WUCH E NNo. C-25837REN .07-31-21S TATE OFCALIFORNIALICENSEDARCHITE C T P h a s e :D r a w n B y :1/28/2020 10:46:17 AMA2021111 RESIDENCE3D VIEWSCheckerAuthor1907SDJames Chou1111 N. Diamond Bar Blvd, Diamond Bar, CA 917651Street View2North ElevationNo. Description Date4.1.ePacket Pg. 173 Printed Date:Copyright ® By Creative Design Associates, Inc.C h e c k e d B y D a t e :R e f e r e n c e :C D A P r o j e c t N o.S t a m p :R e v i s i o n s :C l i e n t :P r o j e c t :D r a w i n g T i t l e :D r a w i n g N o. :P r o j e c t N o. :YU-WUCH E NNo. C-25837REN .07-31-21S TATE OFCALIFORNIALICENSEDARCHITE C T P h a s e :D r a w n B y :1/28/2020 10:41:57 AMA2031111 RESIDENCE3D VIEWS WITHCONTEXTCheckerAuthor1907SDJames Chou1111 N. Diamond Bar Blvd, Diamond Bar, CA 91765No. Description DateNTS1VIEW FROM DIAMOND BAR BLVD4.1.ePacket Pg. 174 Printed Date:Copyright ® By Creative Design Associates, Inc.C h e c k e d B y D a t e :R e f e r e n c e :C D A P r o j e c t N o.S t a m p :R e v i s i o n s :C l i e n t :P r o j e c t :D r a w i n g T i t l e :D r a w i n g N o. :P r o j e c t N o. :YU-WUCH E NNo. C-25837REN .07-31-21S TATE OFCALIFORNIALICENSEDARCHITE C T P h a s e :D r a w n B y :1/28/2020 10:42:13 AMA2041111 RESIDENCE3D VIEWS WITHCONTEXTCheckerAuthor1907SDJames Chou1111 N. Diamond Bar Blvd, Diamond Bar, CA 91765No. Description DateN.T.S1BIRDSEYE VIEW OF SITEN.T.S.2BIRDSEYE VIEW OF SITE ZOOMED IN4.1.ePacket Pg. 175 11801 Pierce Street, 2nd Floor, Riverside, CA 92505 | (951) 710-3212 | www.ganddini.com ORANGE COUNTY RIVERSIDE PALO ALTO January 3, 2020 Mr. Ken Lee, Vice President – Development PACIFIC PLAZA PREMIER DEVELOPMENT GROUP 9661 East Las Tunas Drive, Suite A Temple City, CA 91780 RE: Diamond Bar Custom Residence Traffic Access Study 19-0189 Dear Mr. Lee: INTRODUCTION Ganddini Group, Inc. is pleased to provide this traffic access study for the Diamond Bar Custom Residence project located at 1149 North Diamond Bar Boulevard in the City of Diamond Bar. The project site is located north of Diamond Bar Boulevard between State Street and Soltaire Street. The purpose of this traffic access study is to compare the trip difference between the currently proposed land use and the previously planned land use. This traffic access study also includes a sight distance analysis and a vehicular maneuvering analysis at the project entry. PROJECT DESCRIPTION The project site is located at 1149 North Diamond Bar Boulevard in the City of Diamond. The vacant project site is currently proposed to be developed with a single-family housing dwelling unit. Figure 1 shows the project location map and Figure 2 illustrates the proposed site plan for a custom residence. Appendix C also contains a larger copy of the site plan. As shown on the site plan, the proposed configuration of the project driveway is depicted as an upside down “U” shape loop that has two curb openings to Diamond Bar Boulevard that may accommodate vehicles to enter the site from the easterly driveway and then exit the site at the westerly driveway in a continuous forward maneuver without the need for reverse movements or a 3-point turn. The project site was previously planned for a development of a 4,400 square foot office building based on the 1149 North Diamond Bar Boulevard Project Traffic Impact Analysis prepared by Kunzman Associates, Inc. (May 24, 2011). PREVIOUSLY PLANNED PROJECT TRIP GENERATION The project site was previously planned for a 4,400 square foot office building in the previously prepared 2011 Traffic Impact Analysis. Trip generation rates published in the previous Institute of Transportation Engineers (ITE), Trip Generation Manual, 8th Edition, 2008, were used to estimate the trip generation for the previously planned project. Appendix A includes the project trip generation table from the previously prepared 2011 Traffic Impact Analysis that depicts the previously planned project as consisting of a 4,400 square foot office building. As shown in Table 1 and Appendix A, the previously planned land use was projected to generate approximately 48 daily vehicle trips with 7 of which occurring during the morning peak hour and with 6 of which occurring during the evening peak hour. 4.1.f Packet Pg. 176 Mr. Ken Lee, Vice President – Development PACIFIC PLAZA PREMIER DEVELOPMENT GROUP January 3, 2020 Diamond Bar Custom Residence Traffic Access Study 2 19-0189 Table 1 also shows trips generated by the previously planned office land use based on the most current Institute of Transportation Engineers (ITE), Trip Generation Manual, 10th Edition, 2017. The previously planned office land use is projected to generate approximately 43 daily vehicle trips with 5 AM peak hour trips and with 5 PM peak hour trips, based on the current ITE 10th Edition trip generation rates. As shown in Table 1, the current ITE 10th Edition trip generation rates are lower than the previous ITE 8th Edition trip generation rates. CURRENTLY PROPOSED PROJECT TRIP GENERATION The currently proposed land use consists a single-family housing dwelling unit as shown on Figure 2. Trip generation rates published in the current ITE 10th Edition are used to estimate the number of trips that are projected to be generated by the proposed project. Table 1 shows the trip generation summary for the proposed project. As shown in Table 1, the currently proposed project is projected to generate approximately 10 daily vehicle trips with 1 AM peak hour trip and with 1 PM peak hour trip. TRIP GENERATION COMPARISON Table 1 compares the trip difference between the currently proposed land use (single-family detached housing unit) and the previously planned land use (office) from the 2011 Traffic Impact Analysis based on the previous ITE 8th Edition trip generation rates. As shown in Table 1, the currently proposed land use is projected to generate fewer trips than the previously planned land use from the 2011 Traffic Impact Analysis. The currently proposed land use compared to the previously planned land use is projected to generate approximately 38 fewer daily vehicle trips with 6 fewer inbound trips during the AM peak hour and 5 fewer outbound trips during the PM peak hour. Table 1 also compares the trip difference between the currently proposed land use (single-family detached housing unit) and the previously planned land use (office) using the latest ITE 10th Edition trip generation rates. As shown in Table 1, the currently proposed land use is projected to generate fewer trips than the previously planned land use based on the current ITE 10th Edition trip generation rates. The currently proposed land use compared to the previously planned land use is projected to generate approximately 33 fewer daily vehicle trips with 4 fewer inbound trips during the AM peak hour and 4 fewer outbound trips during the PM peak hour. The conclusion within the previously prepared 2011 Traffic Impact Analysis states that the project has no significant traffic impacts to the surrounding intersections on Diamond Bar Boulevard at Soltaire Street and Highland Valley Road. All the analysis intersections including the proposed project driveway on Diamond Bar Boulevard were projected to operate at Level of Service C or better during the peak hours. Since the currently proposed land use will generate fewer trips than the previously planned land use from the 2011 Traffic Impact Analysis, no significant impacts are anticipated. DRIVEWAY SIGHT DISTANCE ANALYSIS As shown on the site plan, the proposed configuration of the project driveway is depicted as an upside down “U” shape loop that has two curb openings to Diamond Bar Boulevard that may accommodate vehicles to enter the site from the easterly driveway and then exit the site at the westerly driveway in a continuous forward maneuver without the need for reverse movements or a 3-point turn. Both project driveways exit onto Diamond Bar Boulevard where it has a roadway downgrade of approximately between 3% and 6% in the direction of travel. Based on the Highway Design Manual, the minimum corner sight distance standard is 550 feet for a driveway on a roadway with a design speed of 50 mile per hour (mph). Based on the American 4.1.f Packet Pg. 177 Mr. Ken Lee, Vice President – Development PACIFIC PLAZA PREMIER DEVELOPMENT GROUP January 3, 2020 Diamond Bar Custom Residence Traffic Access Study 3 19-0189 Association of State Highway and Transportation Officials (AASHTO) Geometric Design of Highways and Streets (AASHTO Green Book, 6th Edition, 2011), the stopping sight distance is 474 feet on a 50 mph roadway with a 6% downgrade (AASHOTO Table 3-2). Appendix B includes the Highway Design Manual and AASHTO sight distance standards. Figure 3 shows the sight distance analysis for the easterly project driveway at Diamond Bar Boulevard. As shown on Figure 3, the project driveway has adequate sight distances when the yellow highlighted triangular areas are clear of visual obstructions that are more than 2 feet tall. Figure 4 shows the line of sight restricted use area. VEHICULAR MANEUVERING ANALYSIS The proposed configuration of the project driveway is depicted as an upside down “U” shape loop that has two curb openings to Diamond Bar Boulevard that may accommodate vehicles to enter the site from the easterly driveway and then exit the site at the westerly driveway in a continuous forward maneuver without the need for reverse movements or a 3-point turn. The vehicular maneuvering analysis is performed at the project driveways on Diamond Bar Boulevard using vehicular turning templates for a passenger car and a waste management full-size pickup truck. It is our understanding that the City of Diamond Bar requires the waste management truck to enter the site to pick up the waste rather than stopping on Diamond Bar Boulevard to pick-up the waste on the curb side. The waste management has indicated to the applicant that services could be provided to the project site with a special “valet service” plan that uses a full-size pickup truck similar in size to a typical full-size passenger car. Figure 5 and Figure 6 show the inbound and outbound passenger car/waste management full-size pickup truck turning template at the project driveway, and the currently proposed driveway design is adequate for the maneuvering movements of a passenger car or a waste management full-size pickup truck. The proposed driveway configuration can accommodate vehicles to enter the site from the easterly driveway and then exit the site at the westerly driveway in a continuous forward maneuver. Figure 7 shows the inbound and outbound vehicular turning template at the project driveway for a FedEx and UPS standard parcel delivery van/truck. As shown in Figure 7, the currently proposed driveway design is also adequate for the maneuvering movements of a standard parcel delivery van/truck. CONCLUSION The currently proposed land use is projected to generate fewer trips than the previously planned land use from the 2011 Traffic Impact Analysis. The currently proposed land use compared to the previously planned land use is projected to generate approximately 38 fewer daily vehicle trips with 6 fewer inbound trips during the AM peak hour and 5 fewer outbound trips during the PM peak hour. The currently proposed land use is projected to generate fewer trips than the previously planned office land use using the latest ITE 10th Edition trip generation rates. The currently proposed land use compared to the previously planned office land use is projected to generate approximately 33 fewer daily vehicle trips with 4 fewer inbound trips during the AM peak hour and 4 fewer outbound trips during the PM peak hour. The conclusion within the previously prepared 2011 Traffic Impact Analysis states that the project has no significant traffic impacts to the surrounding intersections on Diamond Bar Boulevard at Soltaire Street and Highland Valley Road. All the analysis intersections including the proposed project driveway on Diamond Bar Boulevard were projected to operate at Level of Service C or better during the peak hours. Since the currently proposed land use will generate fewer trips than the previously planned land use from the 2011 Traffic Impact Analysis, no significant impacts are anticipated. 4.1.f Packet Pg. 178 Mr. Ken Lee, Vice President – Development PACIFIC PLAZA PREMIER DEVELOPMENT GROUP January 3, 2020 Diamond Bar Custom Residence Traffic Access Study 4 19-0189 As shown on Figure 3, the project driveway has adequate sight distances when the yellow highlighted triangular areas are clear of visual obstructions that are more than 2 feet tall. Figure 4 shows the line of sight restricted use area. The currently proposed driveway design is adequate for the maneuvering movements of a passenger car or a waste management full-size pickup truck. The waste management has indicated to the applicant that services could be provided to the project site with a special “valet service” plan that uses a full-size pickup truck similar in size to a typical full-size passenger car. The proposed driveway configuration can accommodate vehicles to enter the site from the easterly driveway and then exit the site at the westerly driveway in a continuous forward maneuver. The currently proposed driveway design is also adequate for the maneuvering movements of a FedEx and UPS standard parcel delivery van/truck. It has been a pleasure to service your needs on the Diamond Bar Custom Residence project at 1149 North Diamond Bar Boulevard. Should you have any questions or if we can be of further assistance, please do not hesitate to call at (714) 795-3100. Sincerely, GANDDINI GROUP, INC. Tom Huang, TE Senior Traffic Engineer 4.1.f Packet Pg. 179 No.Land Use Code¹ Units² In% Out% Total In% Out% Total 1 Single-Family Detached Housing (ITE 10th Edition) ITE 210 DU 25% 75% 0.750 63% 37% 1.000 9.52 2 General Office Building (ITE 8th Edition) ITE 710 TSF 88% 12% 1.550 17% 83% 1.490 11.01 3 General Office Building (ITE 10th Edition) ITE 710 TSF 86% 14% 1.160 16% 84% 1.150 9.74 No.Land Use In Out Total In Out Total Previously Planned Land Use³ 2 General Office Building (ITE 8th Edition) 4.400 TSF 6 1 7 1 5 6 48 Proposed Land Use 1 Single-Family Detached Housing (ITE 10th Edition) 1 DU 0 1 1 1 0 1 10 -6 - -6 - -5 -5 -38 Previously Planned Land Use³ 3 General Office Building (ITE 10th Edition) 4.400 TSF 4 1 5 1 4 5 43 Proposed Land Use 1 Single-Family Detached Housing (ITE 10th Edition) 1 DU 0 1 1 1 0 1 10 -4 - -4 - -4 -4 -33 (1) (2) (3) Previously prepared traffic study: 1149 North Diamond Bar Boulevard Project Traffic Impact Analysis, Kunzman Associates, Inc. (May 24, 2011). Trip Difference Comparing to the 2011 Traffic Study Trip Difference Comparing to the Latest ITE Trip Rates ITE = Institute of Transportation Engineers, Trip Generation Manual, 10th Edition, 2017; XXX = Land Use Code DU = Dwelling Units; TSF = Thousand Square Feet Quantity² Project Notes: AM Peak PM Peak Daily Trips Generated Project Table 1 Project Trip Generation Trip Generation Rates AM Peak PM Peak Daily Diamond Bar Custom Residence Traffic Access Study 19-01895 4.1.f Packet Pg. 180 6 4.1.f Packet Pg. 181 74.1.fPacket Pg. 182 84.1.fPacket Pg. 183 94.1.fPacket Pg. 184 104.1.fPacket Pg. 185 114.1.fPacket Pg. 186 124.1.fPacket Pg. 187 APPENDIX A TRIP GENERATION TABLE FROM THE PREVIOUSLY PREPARED 2011 TRAFFIC STUDY Apx - 1 4.1.f Packet Pg. 188 Land Use Quantity Units2 Inbound Outbound Total Inbound Outbound Total Daily Trip Generation Rates Office 4.4 TSF 1.36 0.19 1.55 0.25 1.24 1.49 11.01 Trips Generated Office 4.4 TSF 6 1 7 1 5 6 48 1 Source: Institute of Transportation Engineers, Trip Generation, 8th Edition, 2008, Land Use Category 710. 2 TSF = Thousand Square Feet Table 2 Project Traffic Generation 1 Peak Hour Morning Evening 18 Apx - 2 4.1.f Packet Pg. 189 APPENDIX B SIGHT DISTANCE STANDARDS Apx - 3 4.1.f Packet Pg. 190 3-1 3.1 INTRODUCTION The alignment of a highway or street produces a great impact on the environment, the fabric of the community, and the highway user. The alignment consists of a variety of design elements that combine to create a facility that serves traffi c safely and effi ciently, consistent with the facility’s intended function. Each alignment element should complement others to achieve a consistent, safe, and effi cient design. The design of highways and streets within particular functional classes is treated separately in later chapters. Common to all classes of highways and streets are several principal elements of design. These include sight distance, superelevation, traveled way widening, grades, horizontal and vertical alignments, and other elements of geometric design. These alignment elements are discussed in this chapter, and, as appropriate, in the later chapters pertaining to specifi c highway functional classes. 3.2 SIGHT DISTANCE 3.2.1 General Considera ons A driver’s ability to see ahead is needed for safe and effi cient operation of a vehicle on a high- way. For example, on a railroad, trains are confi ned to a fi xed path, yet a block signal system and trained operators are needed for safe operation. In contrast, the path and speed of motor vehicles on highways and streets are subject to the control of drivers whose ability, training, and experi- ence are quite varied. The designer should provide sight distance of suffi cient length that drivers can control the operation of their vehicles to avoid striking an unexpected object in the traveled way. Certain two-lane highways should also have suffi cient sight distance to enable drivers to use the opposing traffi c lane for passing other vehicles without interfering with oncoming ve- hicles. Two-lane rural highways should generally provide such passing sight distance at frequent intervals and for substantial portions of their length. On the other hand, it is normally of little practical value to provide passing sight distance on two-lane urban streets or arterials. The pro- portion of a highway’s length with suffi cient sight distance to pass another vehicle and interval between passing opportunities should be compatible with the intended function of the highway 3 Elements of Design © 2011 by the American Association of State Highway and Transportation Officials. All rights reserved. Duplication is a violation of applicable law. Apx - 4 4.1.f Packet Pg. 191 3-2 A Policy on Geometric Design of Highways and Streets and the desired level of service. Design criteria and guidance applicable to specifi c functional classifi ca- tions of highways and streets are presented in Chapters 5 through 8. Four aspects of sight distance are discussed below: (1) the sight distances needed for stopping, which are applicable on all highways; (2) the sight distances needed for the passing of overtaken vehicles, applicable only on two-lane highways; (3) the sight distances needed for decisions at complex locations; and (4) the criteria for measuring these sight distances for use in design. The design of alignment and profi le to pro- vide sight distances and to satisfy the applicable design criteria are described later in this chapter. The special conditions related to sight distances at intersections are discussed in Section 9.5. 3.2.2 Stopping Sight Distance Sight distance is the length of the roadway ahead that is visible to the driver. The available sight distance on a roadway should be suffi ciently long to enable a vehicle traveling at or near the design speed to stop before reaching a stationary object in its path. Although greater lengths of visible roadway are desirable, the sight distance at every point along a roadway should be at least that needed for a below-average driver or vehicle to stop. Stopping sight distance is the sum of two distances: (1) the distance traversed by the vehicle from the instant the driver sights an object necessitating a stop to the instant the brakes are applied, and (2) the dis- tance needed to stop the vehicle from the instant brake application begins. These are referred to as brake reaction distance and braking distance, respectively. Brake Reac on Time Brake reaction time is the interval from the instant that the driver recognizes the existence of an obstacle on the roadway ahead that necessitates braking until the instant that the driver actually applies the brakes. Under certain conditions, such as emergency situations denoted by fl ares or fl ashing lights, drivers ac- complish these tasks almost instantly. Under most other conditions, the driver needs not only to see the object but also to recognize it as a stationary or slowly moving object against the background of the roadway and other objects, such as walls, fences, trees, poles, or bridges. Such determinations take time, and the amount of time needed varies considerably with the distance to the object, the visual acuity of the driver, the natural rapidity with which the driver reacts, the atmospheric visibility, the type and the condition of the roadway, and nature of the obstacle. Vehicle speed and roadway environment probably also infl uence reaction time. Normally, a driver traveling at or near the design speed is more alert than one traveling at a lesser speed. A driver on an urban street confronted by innumerable potential confl icts with parked vehicles, driveways, and cross streets is also likely to be more alert than the same driver on a limited-access facility where such conditions should be almost nonexistent. The study of reaction times by Johansson and Rumar (39) referred to in Section 2.2.6 was based on data from 321 drivers who expected to apply their brakes. The median reaction-time value for these drivers was 0.66 s, with 10 percent using 1.5 s or longer. These fi ndings correlate with those of earlier studies in which alerted drivers were also evaluated. Another study (44) found 0.64 s as the average reaction time, while 5 percent of the drivers needed over 1 s. In a third study (48), the values of brake reaction time ranged from 0.4 to 1.7 s. In the Johansson and Rumar study (39), when the event that prompted application of the brakes was unexpected, the drivers’ response times were found to increase by approximately 1 s or more; some reaction times were greater than 1.5 s. This increase in reaction time substantiated earlier © 2011 by the American Association of State Highway and Transportation Officials. All rights reserved. Duplication is a violation of applicable law. Apx - 5 4.1.f Packet Pg. 192 Chapter 3Elements of Design 3-3 laboratory and road tests in which the conclusion was drawn that a driver who needed 0.2 to 0.3 s of reac- tion time under alerted conditions would need 1.5 s of reaction time under normal conditions. Minimum brake reaction times for drivers could thus be at least 1.64 s, 0.64 s for alerted drivers plus 1 s for the unexpected event. Because the studies discussed above used simple prearranged signals, they represent the least complex of roadway conditions. Even under these simple conditions, it was found that some drivers took over 3.5 s to respond. Because actual conditions on the highway are generally more complex than those of the studies, and because there is wide variation in driver reaction times, it is evident that the criterion adopted for use should be greater than 1.64 s. The brake reaction time used in design should be long enough to include the reaction times needed by nearly all drivers under most highway conditions. Both recent research (17 ) and the studies documented in the literature (39,44,48) show that a 2.5-s brake reaction time for stopping sight situations encompasses the capabilities of most drivers, in- cluding those of older drivers. The recommended design criterion of 2.5 s for brake reaction time exceeds the 90th percentile of reaction time for all drivers and was used in the development of Table 3-1. A brake reaction time of 2.5 s is considered adequate for conditions that are more complex than the simple conditions used in laboratory and road tests, but it is not adequate for the most complex conditions encountered in actual driving. The need for greater reaction time in the most complex conditions encoun- tered on the roadway, such as those found at multiphase at-grade intersections and at ramp terminals on through roadways, can be found in Section 3.2.3 on “Decision Sight Distance.” Braking Distance The approximate braking distance of a vehicle on a level roadway traveling at the design speed of the roadway may be determined from the following equation: Metric U.S. Customary (3-1) where: dB = braking distance, m V = design speed, km/h a = deceleration rate, m/s2 where: dB = braking distance, ft V = design speed, mph a = deceleration rate, ft/s2 Studies documented in the literature (17 ) show that most drivers decelerate at a rate greater than 4.5 m/s2 [14.8 ft/s2] when confronted with the need to stop for an unexpected object in the roadway. Approximately 90 percent of all drivers decelerate at rates greater than 3.4 m/s2 [11.2 ft/s2]. Such decelerations are within the driver’s capability to stay within his or her lane and maintain steering control during the braking maneuver on wet surfaces. Therefore, 3.4 m/s2 [11.2 ft/s2] (a comfortable deceleration for most drivers) is recommended as the deceleration threshold for determining stopping sight distance. Implicit in the choice of this deceleration threshold is the assessment that most vehicle braking systems and the tire-pavement friction levels of most roadways are capable of providing a deceleration rate of at least 3.4 m/s2 [11.2 ft/s2]. The friction available on most wet pavement surfaces and the capabilities of most vehicle braking systems can provide braking friction that exceeds this deceleration rate. © 2011 by the American Association of State Highway and Transportation Officials. All rights reserved. Duplication is a violation of applicable law. Apx - 6 4.1.f Packet Pg. 193 3-4 A Policy on Geometric Design of Highways and Streets Table 3-1. Stopping Sight Distance on Level Roadways Metric U.S. Customary Design Speed (km/h) Brake Reac on Distance (m) Braking Distance on Level (m) Stopping Sight Distance Design Speed (mph) Brake Reac on Distance ( ) Braking Distance on Level ( ) Stopping Sight Distance Calculat- ed (m) Design (m) Calculat- ed ( ) Design ( ) 20 13.9 4.6 18.5 20 15 55.1 21.6 76.7 80 30 20.9 10.3 31.2 35 20 73.5 38.4 111.9 115 40 27.8 18.4 46.2 50 25 91.9 60.0 151.9 155 50 34.8 28.7 63.5 65 30 110.3 86.4 196.7 200 60 41.7 41.3 83.0 85 35 128.6 117.6 246.2 250 70 48.7 56.2 104.9 105 40 147.0 153.6 300.6 305 80 55.6 73.4 129.0 130 45 165.4 194.4 359.8 360 90 62.6 92.9 155.5 160 50 183.8 240.0 423.8 425 100 69.5 114.7 184.2 185 55 202.1 290.3 492.4 495 110 76.5 138.8 215.3 220 60 220.5 345.5 566.0 570 120 83.4 165.2 248.6 250 65 238.9 405.5 644.4 645 130 90.4 193.8 284.2 285 70 257.3 470.3 727.6 730 75 275.6 539.9 815.5 820 80 294.0 614.3 908.3 910 Note: Brake reac on distance predicated on a me of 2.5 s; decelera on rate of 3.4 m/s2 [11.2 /s2] used to determine calculated sight distance. Design Values The stopping sight distance is the sum of the distance traversed during the brake reaction time and the distance to brake the vehicle to a stop. The computed distances for various speeds at the assumed condi- tions on level roadways are shown in Table 3-1 and were developed from the following equation: Metric U.S. Customary (3-2) where: SSD = stopping sight distance, m V = design speed, km/h t = brake reaction time, 2.5 s a = deceleration rate, m/s2 where: SSD = stopping sight distance, ft V = design speed, mph t = brake reaction time, 2.5 s a = deceleration rate, ft/s2 Stopping sight distances exceeding those shown in Table 3-1 should be used as the basis for design wher- ever practical. Use of longer stopping sight distances increases the margin for error for all drivers and, in particular, for those who operate at or near the design speed during wet pavement conditions. New pave- ments should have initially, and should retain, friction coeffi cients consistent with the deceleration rates used to develop Table 3-1. © 2011 by the American Association of State Highway and Transportation Officials. All rights reserved. Duplication is a violation of applicable law. Apx - 7 4.1.f Packet Pg. 194 Chapter 3Elements of Design 3-5 E ect of Grade on Stopping When a highway is on a grade, Equation 3-1 for braking distance is modifi ed as follows: Metric U.S. Customary (3-3) where: dB = braking distance on grade, m V = design speed, km/h a = deceleration, m/s2 G = grade, rise/run, m/m where: dB = braking distance on grade, ft V = design speed, mph a = deceleration, ft/s2 G = grade, rise/run, ft/ft In this equation, G is the rise in elevation divided by the distance of the run and the percent of grade di- vided by 100, and the other terms are as previously stated. The stopping distances needed on upgrades are shorter than on level roadways; those on downgrades are longer. The stopping sight distances for various grades shown in Table 3-2 are the values determined by using Equation 3-3 in place of the second term in Equation 3-2. These adjusted sight distance values are computed for wet-pavement conditions using the same design speeds and brake reaction times used for level roadways in Table 3-1. Table 3-2. Stopping Sight Distance on Grades Metric U.S. Customary Design Speed (km/h) Stopping Sight Distance (m)Design Speed (mph) Stopping Sight Distance ( ) Downgrades Upgrades Downgrades Upgrades 3 % 6 % 9 % 3 % 6 % 9 %3 % 6 % 9 % 3 % 6 % 9 % 20 20 20 20 19 18 18 15 80 82 85 75 74 73 30 32 35 35 31 30 29 20 116 120 126 109 107 104 40 50 50 53 45 44 43 25 158 165 173 147 143 140 50 66 70 74 61 59 58 30 205 215 227 200 184 179 60 87 92 97 80 77 75 35 257 271 287 237 229 222 70 110 116 124 100 97 93 40 315 333 354 289 278 269 80 136 144 154 123 118 114 45 378 400 427 344 331 320 90 164 174 187 148 141 136 50 446 474 507 405 388 375 100 194 207 223 174 167 160 55 520 553 593 469 450 433 110 227 243 262 203 194 186 60 598 638 686 538 515 495 120 263 281 304 234 223 214 65 682 728 785 612 584 561 130 302 323 350 267 254 243 70 771 825 891 690 658 631 75 866 927 1003 772 736 704 80 965 1035 1121 859 817 782 © 2011 by the American Association of State Highway and Transportation Officials. All rights reserved. Duplication is a violation of applicable law. Apx - 8 4.1.f Packet Pg. 195 CHAPTER 200 GEOMETRIC DESIGN AND STRUCTURE STANDARDS Topic 201 - Sight Distance Index 201.1 - General Sight distance is the continuous length of highway ahead, visible to the highway user. Four types of sight distance are considered herein: passing, stopping, decision, and corner. Passing sight distance is used where use of an opposing lane can provide passing opportunities (see Index 201.2). Stopping sight distance is the minimum sight distance for a given design speed to be provided on multilane highways and on 2-lane roads when passing sight distance is not economically obtainable. Stopping sight distance also is to be provided for all users, including motorists and bicyclists, at all elements of interchanges and intersections at grade, including private road connections (see Topic 504, Index 405.1, & Figure 405.7). Decision sight distance is used at major decision points (see Indexes 201.7 and 504.2). Corner sight distance is used at intersections (see Index 405.1, Figure 405.7, and Figure 504.3I). Table 201.1 shows the minimum standards for stopping sight distance related to design speed for motorists. Stopping sight distances given in the table are suitable for Class II and Class III bikeways. The stopping sight distances are also applicable to roundabout design on the approach roadway, within the circulatory roadway, and on the exits prior to the pedestrian crossings. Also shown in Table 201.1 are the values for use in providing passing sight distance. See Chapter 1000 for Class I bikeway sight distance guidance. Chapter 3 of "A Policy on Geometric Design of Highways and Streets," AASHTO, contains a thorough discussion of the derivation of stopping sight distance. 201.2 Passing Sight Distance Passing sight distance is the minimum sight distance required for the driver of one vehicle to pass another vehicle safely and comfortably. Passing must be accomplished assuming an oncoming vehicle comes into view and maintains the design speed, without reduction, after the overtaking maneuver is started. Table 201.1 Sight Distance Standards Design Speed(1) (mph) Stopping(2) (ft) Passing (ft) 10 50 --- 15 100 --- 20 125 800 25 150 950 30 200 1,100 35 250 1,300 40 300 1,500 45 360 1,650 50 430 1,800 55 500 1,950 60 580 2,100 65 660 2,300 70 750 2,500 75 840 2,600 80 930 2,700 (1) See Topic 101 for selection of design speed. (2) For sustained downgrades, refer to advisory standard in Index 201.3 The sight distance available for passing at any place is the longest distance at which a driver whose eyes are 3 ½ feet above the pavement surface can see the top of an object 4 ¼ feet high on the road. See Table 201.1 for the calculated values that are associated with various design speeds. In general, 2-lane highways should be designed to provide for passing where possible, especially those routes with high volumes of trucks or recreational vehicles. Passing should be done on tangent horizontal alignments with constant grades or a slight sag vertical curve. Not only are drivers reluctant to pass on a long crest vertical curve, but it is impracticable to design crest vertical curves to provide for passing sight distance because of high cost where crest cuts are involved. Passing sight Apx - 9 4.1.f Packet Pg. 196 distance for crest vertical curves is 7 to 17 times longer than the stopping sight distance. Ordinarily, passing sight distance is provided at locations where combinations of alignment and profile do not require the use of crest vertical curves. Passing sight distance is considered only on 2-lane roads. At critical locations, a stretch of 3- or 4-lane passing section with stopping sight distance is sometimes more economical than two lanes with passing sight distance. Passing on sag vertical curves can be accomplished both day and night because headlights can be seen through the entire curve. See Part 3 of the California Manual on Uniform Traffic Control Devices (California MUTCD) for criteria relating to the placement of barrier striping for no-passing zones. Note, that the passing sight distances shown in the California MUTCD are based on traffic operational criteria. Traffic operational criteria are different from the design characteristics used to develop the values provided in Table 201.1 and Chapter 3 of AASHTO, A Policy on Geometric Design of Highways and Streets. The aforementioned table and AASHTO reference are also used to design the vertical profile and horizontal alignment of the highway. Consult the Headquarters (HQ) Traffic Liaison when using the California MUTCD criteria for traffic operating-control needs. Other means for providing passing opportunities, such as climbing lanes or turnouts, are discussed in Index 204.5. Chapter 3 of AASHTO, A Policy on Geometric Design of Highways and Streets, contains a thorough discussion of the derivation of passing sight distance. 201.3 Stopping Sight Distance The minimum stopping sight distance is the distance required by the user, traveling at a given speed, to bring the vehicle or bicycle to a stop after an object ½-foot high on the road becomes visible. Stopping sight distance for motorists is measured from the driver's eyes, which are assumed to be 3 ½ feet above the pavement surface, to an object ½- foot high on the road. See Index 1003.1(10) for Class I bikeway stopping sight distance guidance. The stopping sight distances in Table 201.1 should be increased by 20 percent on sustained downgrades steeper than 3 percent and longer than one mile. 201.4 Stopping Sight Distance at Grade Crests Figure 201.4 shows graphically the relationships between length of highway crest vertical curve, design speed, and algebraic difference in grades. Any one factor can be determined when the other two are known. 201.5 Stopping Sight Distance at Grade Sags From the curves in Figure 201.5, the minimum length of vertical curve which provides headlight sight distance in grade sags for a given design speed can be obtained. If headlight sight distance is not obtainable at grade sags, lighting may be considered. The District approval authority or Project Delivery Coordinator, depending upon the current District Design Delegation Agreement, and the HQ Traffic Liaison shall be contacted to review proposed grade sag lighting to determine if such use is appropriate. 201.6 Stopping Sight Distance on Horizontal Curves Where an object off the pavement such as a bridge pier, building, cut slope, or natural growth restricts sight distance, the minimum radius of curvature is determined by the stopping sight distance. Available stopping sight distance on horizontal curves is obtained from Figure 201.6. It is assumed that the driver's eye is 3 ½ feet above the center of the inside lane (inside with respect to curve) and the object is ½-foot high. The line of sight is assumed to intercept the view obstruction at the midpoint of the sight line and 2 feet above the center of the inside lane when the road profile is flat (i.e. no vertical curve). Crest vertical curves can cause additional reductions in sight distance. The clear distance (m) is measured from the center of the inside lane to the obstruction. The design objective is to determine the required clear distance from centerline of inside lane to a retaining wall, bridge pier, abutment, cut slope, or other obstruction for a given design speed. Using Apx - 10 4.1.f Packet Pg. 197 radius of curvature and minimum sight distance for that design speed, Figure 201.6 gives the clear distance (m) from centerline of inside lane to the obstruction. See Index 1003.1(12) for bikeway stopping sight distance on horizontal curve guidance. When the radius of curvature and the clear distance to a fixed obstruction are known, Figure 201.6 also gives the sight distance for these conditions. See Index 101.1 for technical reductions in design speed caused by partial or momentary horizontal sight distance restrictions. See Index 203.2 for additional comments on glare screens. Cuts may be widened where vegetation restricting horizontal sight distance is expected to grow on finished slopes. Widening is an economic trade-off that must be evaluated along with other options. See Index 902.2 for sight distance requirements on landscape projects. 201.7 Decision Sight Distance At certain locations, sight distance greater than stopping sight distance is desirable to allow drivers time for decisions without making last minute erratic maneuvers (see Chapter III of AASHTO, A Policy on Geometric Design of Highways and Streets, for a thorough discussion of the derivation of decision sight distance.) On freeways and expressways the decision sight distance values in Table 201.7 should be used at lane drops and at off-ramp noses to interchanges, branch connections, roadside rests, vista points, and inspection stations. When determining decision sight distance on horizontal and vertical curves, Figures 201.4, 201.5, and 201.6 can be used. Figure 201.7 is an expanded version of Figure 201.4 and gives the relationship among length of crest vertical curve, design speed, and algebraic difference in grades for much longer vertical curves than Figure 201.4. Decision sight distance is measured using the 3 ½-foot eye height and ½-foot object height. See Index 504.2 for sight distance at secondary exits on a collector-distributor road. Table 201.7 Decision Sight Distance Design Speed (mph) Decision Sight Distance (ft) 30 450 35 525 40 600 45 675 50 750 55 865 60 990 65 1,050 70 1,105 75 1,180 80 1,260 Topic 202 - Superelevation 202.1 Basic Criteria When a vehicle moves in a circular path, it undergoes a centripetal acceleration that acts toward the center of curvature. This force is countered by the perceived centrifugal force experienced by the motorist. On a superelevated highway, this force is resisted by the vehicle weight component parallel to the superelevated surface and by the side friction developed between the tires and pavement. It is impractical to balance centrifugal force by superelevation alone, because for any given curve radius a certain superelevation rate is exactly correct for only one driving speed. At all other speeds there will be a side thrust either outward or inward, relative to the curve center, which must be offset by side friction. If the vehicle is not skidding, these forces are in equilibrium as represented by the following simplified curve equation, which is used to design a curve for a comfortable operation at a particular speed: Apx - 11 4.1.f Packet Pg. 198 (4) Trailer Track – Semitrailer axle width, measured from outside face of tires. (5) Lock To Lock Time - The time in seconds that an average driver would take under normal driving conditions to turn the steering wheel of a vehicle from the lock position on one side to the lock position on the other side. The default in AutoTurn software is 6 seconds. (6) Steering Lock Angle - The maximum angle that the steering wheels can be turned. It is further defined as the average of the maximum angles made by the left and right steering wheels with the longitudinal axis of the vehicle. (7) Articulating Angle - The maximum angle between the tractor and semitrailer. Topic 405 - Intersection Design Standards 405.1 Sight Distance (1) Stopping Sight Distance. See Index 201.1 for minimum stopping sight distance requirements. (2) Corner Sight Distance. (a) General--At unsignalized intersections a substantially clear line of sight should be maintained between the driver of a vehicle, bicyclist or pedestrian waiting at the crossroad and the driver of an approaching vehicle. Line of sight for all users should be included in right of way, in order to preserve sight lines. Adequate time must be provided for the waiting user to either cross all lanes of through traffic, cross the near lanes and turn left, or turn right, without requiring through traffic to radically alter their speed. The values given in Table 405.1A provide 7-1/2 seconds for the driver on the crossroad to complete the necessary maneuver while the approaching vehicle travels at the assumed design speed of the main highway. The 7-1/2 second criterion is normally applied to all lanes of through traffic in order to cover all possible maneuvers by the vehicle at the crossroad. However, by providing the standard corner sight distance to the lane nearest to and farthest from the waiting vehicle, adequate time should be obtained to make the necessary movement. On multilane highways a 7-1/2 second criterion for the outside lane, in both directions of travel, normally will provide increased sight distance to the inside lanes. Consideration should be given to increasing these values on downgrades steeper than 3 percent and longer than 1 mile (see Index 201.3), where there are high truck volumes on the crossroad, or where the skew of the intersection substantially increases the distance traveled by the crossing vehicle. In determining corner sight distance, a set back distance for the vehicle waiting at the crossroad must be assumed. Set back for the driver of the vehicle on the crossroad shall be a minimum of 10 feet plus the shoulder width of the major road but not less than 15 feet. Line of sight for corner sight distance is to be determined from a 3 and 1/2-foot height at the location of the driver of the vehicle on the minor road to a 4 and 1/4-foot object height in the center of the approaching lane of the major road as illustrated in Figure 504.3I. If the major road has a median barrier, a 2-foot object height should be used to determine the median barrier set back. In some cases the cost to obtain 7-1/2 seconds of corner sight distances may be excessive. High costs may be attributable to right of way acquisition, building removal, extensive excavation, or immitigable environmental impacts. In such cases a lesser value of corner sight distance, as described under the following headings, may be used. (b) Public Road Intersections (Refer to Topic 205)--At unsignalized public road intersections (see Index 405.7) corner sight distance values given in Table 405.1A should be provided. Apx - 12 4.1.f Packet Pg. 199 At signalized intersections the values for corner sight distances given in Table 405.1A should also be applied whenever possible. Even though traffic flows are designed to move at separate times, unanticipated conflicts can occur due to violation of signal, right turns on red, malfunction of the signal, or use of flashing red/yellow mode. Table 405.1A Corner Sight Distance (7-1/2 Second Criteria) Design Speed (mph) Corner Sight Distance (ft) 25 275 30 330 35 385 40 440 45 495 50 550 55 605 60 660 65 715 70 770 Where restrictive conditions exist, similar to those listed in Index 405.1(2)(a), the minimum value for corner sight distance at both signalized and unsignalized intersections shall be equal to the stopping sight distance as given in Table 201.1, measured as previously described. (c) Private Road Intersections (Refer to Index 205.2) and Rural Driveways (Refer to Index 205.4)--The minimum corner sight distance shall be equal to the stopping sight distance as given in Table 201.1, measured as previously described. (d) Urban Driveways (Refer to Index 205.3)-- Corner sight distance requirements as described above are not applied to urban driveways. (3) Decision Sight Distance. At intersections where the State route turns or crosses another State route, the decision sight distance values given in Table 201.7 should be used. In computing and measuring decision sight distance, the 3.5-foot eye height and the 0.5-foot object height should be used, the object being located on the side of the intersection nearest the approaching driver. The application of the various sight distance requirements for the different types of intersections is summarized in Table 405.1B. Table 405.1B Application of Sight Distance Requirements Intersection Sight Distance Types Stopping Corner Decision Private Roads X X(1) Public Streets and Roads X X Signalized Intersections X (2) State Route Inter- sections & Route Direction Changes, with or without Signals X X X NOTES: (1) Per Index 405.1(2)(c), the minimum corner sight distance shall be equal to the stopping sight distance as given in Table 201.1. See Index 405.1(2)(a) for setback requirements. (2) Apply corner sight distance requirements at signalized intersections whenever possible due to unanticipated violations of the signals or malfunctions of the signals. See Index 405.1(2)(b). (4) Acceleration Lanes for Turning Moves onto State Highways. At rural intersections, with “STOP” control on the local cross road, acceleration lanes for left and right turns onto the State facility should be considered. At a minimum, the following features should be evaluated for both the major highway and the cross road: • divided versus undivided Apx - 13 4.1.f Packet Pg. 200 • number of lanes • design speed • gradient • lane, shoulder and median width • traffic volume and composition of highway users, including trucks and transit vehicles • turning volumes • horizontal curve radii • sight distance • proximity of adjacent intersections • types of adjacent intersections For additional information and guidance, refer to AASHTO, A Policy on Geometric Design of Highways and Streets, the Headquarters Traffic Liaison, the District Design Liaison, and the Project Delivery Coordinator. 405.2 Left-turn Channelization (1) General. The purpose of a left-turn lane is to expedite the movement of through traffic by, controlling the movement of turning traffic, increasing the capacity of the intersection, and improving safety characteristics. The District Traffic Branch normally establishes the need for left-turn lanes. (2) Design Elements. (a) Lane Width – The lane width for both single and double left-turn lanes on State highways shall be 12 feet. For conventional State highways with posted speeds less than or equal to 40 miles per hour and AADTT (truck volume) less than 250 per lane that are in urban, city or town centers (rural main streets), the minimum lane width shall be 11 feet. When considering lane width reductions adjacent to curbed medians, refer to Index 303.5 for guidance on effective roadway width, which may vary depending on drivers’ lateral positioning and shy distance from raised curbs. (b) Approach Taper -- On conventional highways without a median, an approach taper provides space for a left-turn lane by moving traffic laterally to the right. The approach taper is unnecessary where a median is available for the full width of the left-turn lane. Length of the approach taper is given by the formula on Figures 405.2A, B and C. Figure 405.2A shows a standard left-turn channelization design in which all widening is to the right of approaching traffic and the deceleration lane (see below) begins at the end of the approach taper. This design should be used in all situations where space is available, usually in rural and semi-rural areas or in urban areas with high traffic speeds and/or volumes. Figures 405.2B and 405.2C show alternate designs foreshortened with the deceleration lane beginning at the 2/3 point of the approach taper so that part of the deceleration takes place in the through traffic lane. Figure 405.2C is shortened further by widening half (or other appropriate fraction) on each side. These designs may be used in urban areas where constraints exist, speeds are moderate and traffic volumes are relatively low. (c) Bay Taper -- A reversing curve along the left edge of the traveled way directs traffic into the left-turn lane. The length of this bay taper should be short to clearly delin- eate the left-turn move and to discourage through traffic from drifting into the left- turn lane. Table 405.2A gives offset data for design of bay tapers. In urban areas, lengths of 60 feet and 90 feet are normally used. Where space is restricted and speeds are low, a 60-foot bay taper is appropriate. On rural high-speed highways, a 120-foot length is considered appropriate. (d) Deceleration Lane Length -- Design speed of the roadway approaching the intersection should be the basis for determining deceleration lane length. It is desirable that deceleration take place entirely off the through traffic lanes. Apx - 14 4.1.f Packet Pg. 201 APPENDIX C SITE PLAN Apx - 15 4.1.f Packet Pg. 202 Copyright ® By Creative Design Associates, Inc. C h e c k e d B y D a t e : R e f e r e n c e : C D A P r o j e c t N o. S t a m p : R e v i s i o n s : C l i e n t : P r o j e c t : D r a w i n g T i t l e : D r a w i n g N o. : P r o j e c t N o. : No. C-25837 P h a s e : D r a w n B y : AS-101 CHOU HOUSE SITE PLAN & PROJECT DATA Checker Author 1907 SD James Chou 1111 N. Diamond Bar Blvd, Diamond Bar, CA 91765 Apx - 16 4.1.f Packet Pg. 203 +838 FF +837 FF +838.5 FF +837 FF FOYER STUDY 13.5' X 11.75' +836.5 FF +837.5 FF+837 FF Copyright ® By Creative Design Associates, Inc. C h e c k e d B y D a t e : R e f e r e n c e : C D A P r o j e c t N o. S t a m p : R e v i s i o n s : C l i e n t : P r o j e c t : D r a w i n g T i t l e : D r a w i n g N o. : P r o j e c t N o. : No. C-25837 P h a s e : D r a w n B y : A101 CHOU HOUSE 1ST FLOOR KP KP 1907 SD James Chou 1111 N. Diamond Bar Blvd, Diamond Bar, CA 91765 Apx - 17 4.1.f Packet Pg. 204 Dr. Douglas Barcon 23535 Palomino Dr., Unit 545 Diamond Bar, CA 91765 Grace Lee Senior Planner City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 April 17, 2020 RE: Zone Change and Development Review Planning Case No. PL2015-253 1111 N. Diamond Bar Blvd., Diamond Bar, CA 91789 (APN: 8706-008-013) Dear Ms. Lee, I am writing in opposition to Diamond Bar Planning Commission case number PL2015-253 and rezoning as proposed. As I recall, this property was last up for review by the Planning Commission in 2017, which is before the passage of the 2040 General Plan and proposed changes on North Diamond Bar Blvd. During the prior Planning Commission meeting, I presented artwork based on the story poles on the property and how the proposed property was going to impact the area and traffic on Diamond Bar Blvd. The 2020 plans for this property shows a complete redesign of the building structure and landscaping. In my opinion, the property should be rezoned as open space. It is also a prime example of mansionization in one of the worst possible places in the city; it just doesn’t fit in the location. Please refer to Diamond Bar Municipal Code Section 22.048.040. What are the actual plans for this property? Could it be a birthing center or airbnb? This proposed residence does impact the aesthetics of the northern entry into Diamond Bar on Diamond Bar Blvd south of Temple Avenue and is just south of the artistic and expensive Diamond Bar entry monument. It will be the first structure visible upon entering Diamond Bar. It jumps out of the surrounding hills and says, “look at me!” It blocks and detracts from the view of the hills to the west across SR 57. It also will detract from the west and northwest view from vehicles traveling northbound on Diamond Bar Blvd north of Highland Valley. In Figure 1, I have placed the proposed residence over a photo that I shot of the site in 2017. I may be off on the exact placement and height as proposed in the plan, but it is reasonably close. This proposed residence will also impact the views of homes on the hill on the east side of Diamond Bar Blvd, and without some type of mitigation the east-facing windows will generate reflections from the sun directly into the windows of those homes. It also may generate similar reflections from the west-facing windows onto the SB SR 57 in late afternoon. Moreover, this proposed development is the only residence that would have entry directly from Diamond Bar Blvd in the city. Other than these issues are the concerns regarding the safety of vehicles, pedestrians, and bicycles on Diamond Bar Blvd under traffic and transportation. The horseshoe driveway in the new plan may negate the issue of vehicles backing out of the driveway and into traffic traveling at 45-50 mph, but not necessarily. There is still no resolution of entry into the residence from northbound Diamond Bar Blvd, and placing a left-turn pocket or break in the 4.1.g Packet Pg. 205 median to accommodate vehicles entering or leaving the property is not safe. Either of these could lead to traffic collisions and injury. Regardless of how the property is developed, vehicles can only enter and exit in the southbound direction and that would require a U-Turn at Temple. In order to drive to Temple from the residence, the vehicle must make a U-Turn at Highland Valley. If a party is held at the residence, Diamond Bar Blvd has no parking, which would require vehicles to park at Oak Tree Center if authorized. In my opinion, building any type of residence or office in that location is inappropriate, and the Planning Commission should oppose it. The property is a leftover from the construction of SR 57 and has been vacant for years. As I said previously, place a windmill on it or perhaps a cell phone tower disguised as a windmill to generate some revenue for the owner but not a commercial or residential building. For whatever reason, the property was zoned commercial instead of open space, and I believe the best solution is to rezone it as open space. Figure 1. Southwest view of proposed residence from North Diamond Bar Blvd. Respectfully, Dr. Douglas Barcon 4.1.g Packet Pg. 206 From: Doug Barcon <dougbarcon@gmail.com> Sent: Tuesday, June 23, 2020 3:56 PM To: Grace Lee Subject: Errata to Comment by Douglas Barcon Re: Planning Case No. PL2015-253 CAUTION: This message originated outside of our City of Diamond Bar network. Hi Ms. Lee, I am submitting an errata to my comment from April 17, 2020 as follows: Attn: Grace Lee, Senior Planner City of Diamond Bar, California Errata to April 17, 2020 Comment by Dr. Douglas Barcon June 23, 2020 Re: Zone Change and Development Review Planning Case No. PL2015-253 1111 N. Diamond Bar Blvd., Diamond Bar, CA 91789 (APN: 8706-008-013) Diamond Bar Planning Commission meeting June 23, 2020 In my comment on Page 93 of the Planning Commission Agenda Packet, I inadvertently noted that a U- turn would be necessary at Temple Avenue to enter the property from northbound Diamond Bar Blvd. The traffic signage at the intersection of Temple Ave and Diamond Bar Blvd does not permit a U-turn from northbound Diamond Bar Blvd to southbound Diamond Bar Blvd. Entry to the property from northbound Diamond Bar Blvd requires making an unprotected U-turn from the left-turn pocket at Soltaire St, which is normally used to enter the condominium development on the west side of Diamond Bar Blvd. There is little time to accelerate away from vehicles heading south on Diamond Bar Blvd from Temple Ave before having to slow to enter the driveway of the property. This could pose a safety issue and hard braking. The speed limit on southbound Diamond Bar Blvd should not be reduced because of this proposed development. There is also a bicycle lane along the west side of Diamond Bar Blvd. Respectfully, 4.1.g Packet Pg. 207 Dr. Douglas Barcon 4.1.g Packet Pg. 208 From: Nina Holmquist <ninaholmquist@verizon.net> Sent: Monday, June 22, 2020 6:50 PM To: Grace Lee Cc: ninaholmquist@verizon.net Subject: Planning Case No PL2015-253 CAUTION: This message originated outside of our City of Diamond Bar network. To the City of Diamond Bar: I am opposed to the pending project and would like to see that it does not get approved for the following reasons. · A home of 4333 square feet does not blend into the area and is more than twice the size of nearby homes. · The big home would be an eyesore and would take away our view on Diamond Bar Blvd across the freeway to the open land. We have so few open areas it would be a shame to lose this view as we commute and walk on Diamond Bar Blvd. · There is also a significant safety issue if this home is built, and the potential for accidents would increase. In residential areas, the speed limit is 25 mph. On this stretch of Diamond Bar Blvd, the speed limit is 45 mph. Pulling in and out of the driveway would be hazardous, with traffic moving so fast. · Diamond Bar, except for gated communities, does not have homes built right on Diamond Bar Blvd. · On trash pick up day trash containers are set in the street by the curb. That area would have the trash cans in the bike lane on pick up day and would pose a danger to bike riders. Also it would be a blight. Please do not approve this project and keep Diamond Bar beautiful. Respectfully, Nina Holmquist 1174 Flintlock Rd 4.1.g Packet Pg. 209 From: Lee Paulson <tm@silverlightpress.com> Sent: Monday, June 22, 2020 9:50 PM To: Grace Lee Subject: Planning commission meeting, 7.1 comments. CAUTION: This message originated outside of our City of Diamond Bar network. Commission Members, To my knowledge, no other housing unit in the city of Diamond Bar has a driveway which opens out onto Diamond Bar Blvd. All of the housing units that I know of along Diamond Bar Blvd have access to Diamond Bar Blvd only via a city street with a signal. The question from a city planning perspective is do we want to now begin littering Diamond Blvd, which is already over crowded with high speed traffic, especially in that location, with single family driveways? Land use along that stretch of Diamond Bar Blvd in the recently revised Diamond Bar general plan was designated non-residential for a reason. Especially, that parcel. The site is a sliver sandwiched between Diamond Bar Boulevard and the 57 freeway off ramp. As someone who spent a great deal of time on the recent general plan project, my question to the planning commission members is why did we waste our time doing a general plan when the city turns right around and begins piecemeal planning with arbitrary zoning changes? If Diamond Bar is going to change the zoning for nearly every project it wishes to develop, why did we waste our time revising our general plan at all? As planning commissioners, are you concerned at all about attempting to maintain design integrity for our city? If you approve this development, you are telling the citizens of Diamond Bar that you are not working in their best interests. You are working as the developer's agents. Because you will be creating a potential traffic bottleneck which will saddle Diamond Bar citizens into the foreseeable future with a dangerous traffic hazard. Every time there is an accident at that site, one death, one serious injury that will be on you. What will you tell the husband, wife, father, mother who has lost or is now living with a seriously injured loved one? Are you willing to live with that? Are you willing to be the ones who are responsible for notifying the next of kin? If not, then it might be wise to at least pause in your haste to rush this thing through. There is a median along Diamond Bar in that area. Which means the only way into the property is to slow down to a near stop at a curve in the southbound lane where speeds often exceed 50 mph. Cars traveling along that stretch of road, especially at night, are not expecting to find a vehicle in front of them slowing to a near stop in order to turn into a driveway. That is an accident waiting to happen. That's why we have traffic signals. But is it reasonable to install a traffic signal for one residential driveway on Diamond Boulevard? It just makes no sense. In my mind, potential traffic hazards are reason enough to deny a building permit on that site. Any driveway opening onto DB Blvd in that area is a safety hazard pure plain and simple. I understand the developer is attempting to realize a return on his/her investment. But, as far as I am aware, it is not the planning department's job to assist a developer who made an ill advised investment. Wouldn't that site be better utilized as, say, a cell phone tower location, which would have little to no traffic entrance or egress? Is this a precedent we want to set in Diamond Bar? Because a house in this location, especially with a lot that small, is not one where individuals with a family could reasonably live 4.1.g Packet Pg. 210 with any expectation of quiet enjoyment. Question, would you be willing to raise your family in a house at that location? Especially a family with small children? Once the lot is approved for residental development, there is little which can be done to ensure the property is actually built as planned, or used as indicated in the plans. What's to prevent the owners to turn the place into an Airbnb, once built? Frankly, that would make more sense than a single family dwelling at that site. Think about the potential traffic hazards caused by inebriated party-goers attempting to find the place at night, if that were to happen. One can only imagine the confusion and traffic accidents from folks pulling in or out and being hit by speeding traffic coming around the blind curve, even from a circular driveway. Bottom line, the city has dressed this pig up in all sorts of silk finery over the years, proposing general plan and zoning changes several times, etc, but the pig still won't fly. Once again, I remind you that it is not your job, nor your responsibility to assist a developer who made a bad purchase. It is your job to take care of us, the citizens you represent. If you approve this mess, you send a clear signal that you are working for others and not us. Thank you, R. Lee Paulson 20 year Diamond Bar citizen 4.1.g Packet Pg. 211 June 23, 2020 TO: Diamond Bar Senior Planner, Grace Lee via email: GLee@diamondbarca.gov Public Comments for Item 7.1 Dear Planning Commissioners & Staff, Thank you for receiving our input for the 1111 N. Diamond Bar Blvd. project. We are opposed to building a single family home located five feet from the road. No matter how attractive the home is, it simply looks out of place so close to busy roads. The position of this house does not add “social character” and disrupts the graceful, “open sight line” of the 57 freeway buffer. We have lived in Diamond Bar for 27 years. Is it true that this particular home is the only one located so close to a street? Where else does Diamond Bar have homes with doorways within ten feet of a main traffic road. Is this a new trend the city intends to continue? Are there any other homes directly on Diamond Bar boulevard? Recently, we read about a fatal traffic accident near Soltaire on Diamond Bar Blvd. Has the potential for a serious accident been considered with regards to this project? I know this area of Diamond Bar Blvd and that spot is particularly dangerous with curves north of the property. It would seem ludicrous to have ingress and egress in that area. What happens if the residents of this house have a party and there may be parking on Diamond Bar Blvd.? Especially since street racing is common place through out the city, on Diamond Bar Blvd. and Golden Springs. Has this fact been considered in the traffic study? Overall, we also are concerned about the occupancy of this house. Such a large house can be used for airbnb type rentals or a birth “hotel”. We know the city has a high incidence of large houses being used for these types of businesses. How can the city assure the project is occupied by a “single family”? Will the city allow a business to be run in this home? And if a business is run there wouldn’t that be against RL zoning laws? We do not think this development adds a measurable improvement to our city because it is in the wrong place. In fact, I strongly feel it adds danger to all drivers in that area especially our precious young people. A small business of some sort, is a better choice for the location – one that does not depend on customer visits for example bee keeping or horticulture. It is sad to see the city bend over backwards to accommodate an investor/developer when they made a poor investment in land. All investors invest at their own risk. Why should Diamond Bar residents have to pay for injury or death due to unsafe traffic conditions just for the sake of an investor? Will you please answer our questions in writing? Thank you very much. 4.1.g Packet Pg. 212 Thomas & Carol Balderama, Diamond Bar Residents email: trfic@roadrunner.com 909-378-0670 cc: Planning Commissioners 4.1.g Packet Pg. 213 From: Cynthia Robin Smith <diamondbarbeautiful@gmail.com> Sent: Tuesday, June 23, 2020 3:27 PM To: Grace Lee Cc: Greg Gubman Subject: Planning Hearing Item 7.1 Comments Attachments: MSATsensitiveReceptors.png; L.A. keeps building near freeways, even though living there makes people sick - Los Angeles Times.pdf; References Living Near Busy Roads or Traffic Pollution – USC Environmental Health Centers.pdf; Land-Use-101-Webinar-Paper-highlighted.pdf; General Plan 2040 Part 1- 44.pdf; DBExistingConditionsVol1-28CurrentZoningDistricts.pdf CAUTION: This message originated outside of our City of Diamond Bar network. TO: City of Diamond Bar, Sr. Planner, Grace Lee, Community Development Director, Greg Gubman City of Diamond Bar Planning Commissioners RE: 1111 N. Diamond Bar Blvd. Proposed Project/Zone Change Dear Grace, Greg and Commissioners, Thank you for the opportunity to speak about this very important project proposal. As chairman of the local Sierra Club conservation task force, a public benefit non-profit group, devoted to environmental integrity, and quality of life in our local area, and as a 32 year resident of Diamond Bar, I express grave concerns about allowing a new family residence to be built within a mapped, state Air Quality, "sensitive receptor" zone. Especially one located in one of the highest, diesel-pollutant, Trade Corridors in the United States. (57/60 Confluence area.). [See (1) attached MSAT png map] Serious Health Risks Science proves significant risk of death and a long list of diseases occur in humans who inhabit areas with high diesel pollutant zones, for extended periods of time (schools, residences, hospitals, Etc.). [Exhibit: (2) attached references: "L.A. Keeps Building . . ." L.A. Times article, and USC Reference: "Living Near Busy Roads" documents.] Scientists and Air Quality Regulators say homes, schools and day care centers ought not to be built within 500-1,000 feet of busy roads and freeways. [Southern Cal Assoc. Governments] What are "Sensitive Receptors?" Sensitive receptors include, but are not limited to, hospitals, schools, daycare facilities, housing and convalescent facilities - areas where the occupants are more susceptible to the adverse effects of exposure to toxic chemicals, pesticides, and other pollutants. [Refer to attached MSAT png map] 4.1.g Packet Pg. 214 CEQA Categorical Exemption? The plan report deems this project "categorically exempt" to CEQA. Surely, this is an oversight? With what scientific measurement was this assignment made? Especially considering the absolute health risks posed to the project's future occupants? Please explain how occupant health safety may be understood without evaluating roadway pollution in a mapped sensitive receptor zone? Vegetation and even walls are inadequate to mitigate intense pollution exposure at this site. If you counter this assertion, please present the science to prove, efficient mitigation measure. The new, adopted 2040 General Plan considers community health. Please explain how new, residential construction within 500-1,000 feet of a Trade Corridor comports with the goals and principles of the general plan? What manner of information or notification has the City planning department extended to the property owner/investor? Is the land owner aware of the poor inhabitability based on official Air Quality reports? In view of the negative health impacts, this project poses, how may the city be assured the project will be successful? An informed Public's growing concern for air quality and health may impact the success of the project. Seriously: "who wants to raise a family, merely 84 feet from the pavement of a freeway where noise and pollution abound?" Literally, the entire. parcel is "choked" by busy traffic roadways, between Diamond Bar Blvd., and the 57 Freeway. General Plan Land Use Designation + Zoning Question Finally, an important zoning concern. The plan report asserts the project is "consistent with the general plan." Actually, the project is not consistent with the 2040 General Plan Land Use Designation. Please refer to these pages in the Plan Report: Item A: June 23, 2020, Plan Report Packet Page 27, RESOLUTION B. #2 "The Planning Commission has determined that the proposed Zone Change represent a consistent logical, appropriate and rational zoning designation that furthers the goals and objectives of the General Plan" . . . And on page 28, Item B: FACTS IN SUPPORT of FINDINGS: a. "The Zoning Map does not currently reflect the General Plan designation for the property. The Zone Change will place the City’s Zoning Map in conformance with the General Plan by designating the Property at Low Density Residential (RL)." These statements are inaccurate and false. Here is why: 1. 2017 General Plan, Existing Conditions Report Vol. 1, pg. 28, Fig. 2.4 Current Zoning Districts indicates the parcel is zoned "OP" Office/Professional. [attached] 4.1.g Packet Pg. 215 2. The final, adopted 2019, 2040 General Plan, pg. 44 Fig. 2.2 Land Use diagram does not indicate a specific use for this property at all. [attached] Therefore, because no official city action was taken to change the former, 2017 Office Professional designation, the Office/Professional designation must stand. Planning Law requires, zoning must flow FROM the General Plan Land Use designations. General Plans Land Use designations are not to be changed to accommodate individual zoning requests. Please refer to the legal explanation of this feature in the attached, highlighted quote, page 8 in the document: "Land Use 101 - A Field Guide" by Christine Dietrick, City Attorney, Jon Ansolabehere, Asst. City Attorney, City San Luis Obispo I appreciate the thoughtful consideration of this information, especially by the planning commissioners. City decisions contribute to the health, wellbeing of all residents. I request the zoning change be denied based on the inappropriate, confused manner it appears to be proposed. It would be deemed "invalid" according to Planning Law policy. I also request that CEQA, Air Quality health assessment be required for this project. Finally, I request written answers to the questions named in this comments submission, and am grateful to follow updates on this project. For the People of Diamond Bar, Respectfully Submitted, C. Robin Smith References Attached Please disseminate this information packet to the Diamond Bar Planning Commission cc: Sierra Club Angeles Chapter, Exec Director Morgan Goodwin Diamond Bar Is Beautiful Blog: www.diamondbarisbeautiful.com California Native Trees, Landscapes; Wildlife Habitat Conservation Diamond Bar - Pomona Valley Sierra Club Task Force, Chair A Public Benefit, Non-Profit Organization 324 S. Diamond Bar Blvd., #230 Diamond Bar CA 91765 909-861-9920 Desk 951-675-6760 Cell 4.1.g Packet Pg. 216 4.1.g Packet Pg. 217 L.A. keeps building nearfreeways, even though living there makes people sick Are you one of the 2.5 million Southern Californians already living in the pollution zone? By TONY BARBOZA AND JON SCHLEUSS MARCH 2, 2017, 3 A.M. 1 dot = 1 person living within 1,000 feet of a freeway in 2010 F Orsini 1,072-unit apartment complex Opened in three phases between 2004 and 2010 1-bedroom apartment rents for $2,000 to $2,500 a month Developer Geoffrey H. Palmer has built thousands of units near downtown L.A. freeways and plans more Have you ever lived near a freeway? c Tell us your story ADVERTISEMENT ADVERTISEMENT Il Villaggio Toscano Planned 325-unit apartment complex Approved in 2013 by the L.A. City Council over the objections of air quality officials Developer M. David Paul pledged to use enhanced air filters c Tell us your freeway story Motorists travel along the 101 Freeway in Hollywood. (Mel Melcon / Los Angeles Times) View more photos ü Everett Smith, a renter at the Orsini apartments, looks out from his balcony at rush hour traffic on the 101 and 110 freeway interchange in downtown Los Angeles. (Don Bartletti / Los Angeles Times) or more than a decade, California air quality officials have warned against building homes within 500 feet of freeways. And with good reason: People there suffer higher rates of asthma, heart attacks, strokes, lung cancer and pre-term births. Recent research has added more health risks to the list, including childhood obesity, autism and dementia. Yet Southern California civic officials have flouted those warnings, allowing a surge in home building near traffic pollution, according to a Los Angeles Times analysis of U.S. Census data, building permits and other government records. In Los Angeles alone officials have approved thousands of new homes within 1,000 feet of a freeway — even as they advised developers that this distance poses health concerns. The city issued building permits for 4,300 homes near freeways in 2015 — more than in any year over the last decade — and signed off on an additional 3,000 units last year. Public funds, including millions of dollars from California’s cap-and-trade program to cut greenhouse gas emissions, are going to developers to build new homes in freeway pollution hot spots. The population near Los Angeles freeways is growing faster than elsewhere in the city as planners push developers to concentrate new housing near transportation hubs, convinced that increasing urban density will help meet state targets for greenhouse gas reductions. More than 1.2 million people already live in high-pollution zones within 500 feet of a Southern California freeway, with more moving in every day. Between 2000 and 2010 — the most recent period available — the population within 500 feet of a Los Angeles freeway grew 3.9%, compared with a rate of 2.6% citywide. Los Angeles City Councilman José Huizar, who lives several hundred feet from Interstate 5, said freeway pollution is such an urgent and complex problem that he wants the city to establish buffer zones. He called for a “comprehensive, citywide study of development near freeways that would analyze all impacts of limiting development around freeways.” Other elected officials and business groups argue that Los Angeles is so thoroughly crisscrossed by freeways that restricting growth near them is impractical and would hamper efforts to ease a severe housing shortage. In some cases, city officials are paving the way by re-zoning industrial land along freeways and other transportation corridors. In an interview at a recent groundbreaking for a freeway-adjacent apartment project, Los Angeles Mayor Eric Garcetti said that he grew up near the 101 and 405 freeways and that many in his family had cancer. Mayor Eric Garcetti attends a groundbreaking ceremony for a 160-unit affordable apartment project next to the 110 Freeway in South Los Angeles. View more photos ü But he said he opposes any restrictions on how many homes can be built near freeways and thinks that improving air-filtration, building design and tailpipe emissions are a better way to reduce risks to residents. “I take this stuff very seriously, but I also know that in looking for housing we have a very constricted city,” he said. Garcetti spokesman Carl Marziali noted that a prohibition on building within 1,000 feet of freeways, for example, would cover more than 10% of land currently zoned for residential construction in the city, from Westwood to Boyle Heights and San Pedro to Sherman Oaks. But proponents of stricter planning, including supporters of Measure S, a proposal on the March 7 ballot that would place new restrictions on development, have criticized city officials for approving what they term “black lung lofts.” How close to the freeway are you? Low rent and a location near shops and restaurants are what brought Jeremiah Caleb to an apartment on Beloit Avenue, where a sound wall is all that separates the 405 freeway from sleek new apartments and lofts advertising “good living.” But life got worse for Jeremiah and his wife Angel soon after moving into that one-bedroom on the Westside of Los Angeles. The couple began to struggle with bouts of coughing, sneezing and headaches. They kept the windows shut, yet a grimy, black film settled regularly over the furniture, counters and even their skin — a never-ending reminder of the vehicle exhaust and soot they were breathing just 100 feet from 14 lanes of traffic. “We were constantly sick,” said Caleb, an actor in his 30s. The couple worried enough about dirty air that they put off having children. “We were desperate to leave, but we felt stuck. We just couldn't afford it.” Business groups have consistently opposed any suggestion of restricting development near heavy traffic. “Freeways are part of Los Angeles' fabric and prohibiting housing by them is unrealistic,” said Carol Schatz, president of the Downtown Center Business Improvement District. She argues that such restrictions would worsen the housing crisis and severely limit the ability to build housing near mass transit. The Southern California Assn. of Governments, the regional planning agency for Los Angeles, Ventura, Orange, Riverside, San Bernardino and Imperial counties, has projected that the population within 500 feet of a freeway will increase by a quarter million people by 2035. Rob McConnell, a professor of preventive medicine at USC who studies roadway pollution, is one of a number of health researchers who has advised city officials not to allow new housing that close to freeways. “I tell them you’re going to make a lot of people sick,” McConnell said. Scientists have long known that polluted air cuts lives short. But pinpointing the harmful agents in traffic pollution is difficult because it’s a stew of ingredients including toxic combustion gases, microscopic soot particles, compounds from worn tires and dust from vehicle brake pads. Recent research has narrowed in on one component of special concern: ultra-fine particles, pollutants in freshly emitted vehicle exhaust that can be five to 10 times higher near traffic. The invisible, chemical-laden specks are less than one-thousandth the width of a human hair — so tiny they are hard to capture with pollution controls or filters. Scientists suspect ultra-fine particles are able to pass through the lungs and into the bloodstream, where they may harm the heart, brain and other organs. Yet they remain unregulated by state and federal authorities. That emerging science has raised concerns that decades of government regulations, aimed at curbing smog that builds up across vast urban areas, are not sufficiently tailored to the more localized problem of roadway pollution. Two years ago, state environmental officials concluded that diesel soot and other carcinogens in vehicle exhaust pose nearly three times the cancer risk previously thought. In a long-term study, USC researchers have for more than two decades measured the lung capacity of thousands of school children across Southern California. They found that children growing up near major roadways have higher rates of asthma and other respiratory illnesses, including deficits in lung function that can be permanent and lead to a lifetime of health problems. Even in communities with cleaner air, such as Santa Maria near the Santa Barbara County coast, children living near traffic had the same lung function loss as those in Riverside and other smoggy inland areas, the scientists found. Anthony Moretti, chairman of pediatrics at White Memorial Medical Center in Boyle Heights, said children who live close to freeways are among those who most frequently land in the emergency room struggling to breathe and in need of treatment for asthma and other respiratory diseases. “These kids will come in four, five, six times over a six-month period, and clearly their environment is a factor,” he said. "I feel for these families because they suffer an undue burden of illness simply because of where they live.“ Dr. Anthony Moretti says children who live close to freeways are among those who most frequently arrive in the emergency room struggling to breathe and in need of inhalers and treatment for asthma and other respiratory diseases. (Mel Melcon / Los Angeles Times) View more photos ü Public health officials have long warned that traffic pollution can drift well over 1,000 feet from traffic — and more recent research suggests that it may waft more than a mile. Yet it took lawsuits and a nationwide mandate from the U.S. Environmental Protection Agency to force Southern California air quality officials to begin regularly measuring pollution near Southern California freeways in 2014. The first readings confirmed that people near freeways breathe higher levels of the exhaust gases nitrogen dioxide and carbon monoxide. Then, in 2015, the South Coast Air Quality Management District detected the region’s highest concentrations of fine particulate matter at a new monitoring station 30 feet from the 60 Freeway in Ontario. The findings added compelling evidence that traffic emissions are piling on top of regional smog, hitting people near freeways with a double dose of pollution. To learn more about the problem, The Times conducted air quality testing at sites where new housing is planned near Los Angeles freeways. In August and September of 2015, reporters collected air samples at several locations using portable pollution sensors that detect ultra-fine particles, the microscopic pollutants in vehicle exhaust. One set of air samples was taken next to stretches of the 110 and 5 freeways and another set was taken 1,500 to 1,800 feet from the freeways. Ultrafine particles spike near freeways Source: TSI P-Trak Ultrafine Particle Counter 8525 readings on Aug. 20, 2015 and Sept. 24, 2015. See the data ì Pollution readings near the freeways were three to four times higher than in neighborhoods at a distance from traffic. Diesel trucks produced the most noticeable pollution, coughing out foul plumes of exhaust and soot that could be seen and smelled as pollution readings jumped. Scientists at USC and the South Coast air district said the readings were consistent with their measurements near freeways. One of the locations where reporters detected high pollution levels was next to a vacant lot along the 110 Freeway in South Los Angeles where two apartment buildings for low-income residents are being built. The $55-million Meta Housing Corp. project, which will bring 160 new housing units to the busy traffic corridor, is partly funded with money from pollution permits sold under the state’s cap-and-trade program, among other state and local government subsidies. Among the most visible and controversial projects that have raised traffic pollution concerns in Los Angeles are developer Geoffrey H. Palmer’s massive Italianate apartment complexes overlooking downtown freeways. He has built thousands of units and is planning more. In interviews, current and past residents of Palmer’s Orsini development, which hulks over the interchange of the 101 and 110 freeways, said they moved to the complex for its convenient downtown location. But many spoke of keeping windows closed to block noise and pollution, deploying house plants to soak up the bad air and constantly sweeping and dusting the fine black soot that seems to find its way onto every surface. Felicia Gargani said her pet peeve was the grime that collected on her fourth-floor balcony that looked out over the freeway. “If you walk out there barefoot,” she said, “your feet turn black." Construction on the Orsini began more than a decade ago, before scientists grasped the extent of the health hazards of building so close to traffic. In the years since, the South Coast air district has sent dozens of letters to cities sounding alarms about similarly risky home building proposals near freeways in Los Angeles and other communities across its four-county jurisdiction. The air-quality agency reserved some of its strongest criticisms for developer M. David Paul’s 325-unit Il Villaggio Toscano project proposed near the 405-101 interchange in Sherman Oaks, urging Los Angeles city planners in 2011 to “reconsider placing new housing immediately adjacent to one of the busiest freeway intersections in Southern California.” The city “is ignoring the abundant health science data that has come out over the past decade that demonstrates serious health consequences for those living near a freeway,” the air district’s Ian MacMillan wrote. The City Council approved the project unanimously in August 2013, with its backers pledging to use the highest-rated air filters. Los Angeles officials now require all homes built near freeways to have air filtration systems that rate at least 13 on the industry’s 16-point effectiveness scale. California air regulators acknowledge that decades of strict vehicle emissions standards have slashed tailpipe emissions, and they say air quality along freeways will continue to improve as the state transitions to cleaner vehicles and fuels. Health officials say that those mitigating steps are good, but that the only way to solve the problem is for city and county officials to stop residential building near freeways. And that, say legal experts, is well within their authority. Planning experts cite a number of possible approaches to the public health problem. Cities could re-zone areas near heavy traffic to exclude new residential development or change their general plans to prohibit such uses, planning experts say. Officials could adopt ordinances or moratoriums on new residential development. Or they could strengthen building standards — as ++ -- Leaflet | © OpenStreetMap contributors, © CartoDB, CartoDB attribution äAddress Show me an example An estimated 2.5 million Southern Californians live in high- pollution zones within 1,000 feet of a freeway. Nearly half live within 500 feet, where health scientists and air quality regulators say homes, schools and day cares should not be built. Sources: Southern California Association of Governments, San Diego GIS, U.S. Census Bureau, Carto, Mapbox By continuing to use our site, you agree to our Terms of Service and Privacy Policy. You can learn more about how we use cookies by reviewing our Privacy Policy.Close Freeway Pollution f t m X X The Video Cloud video was not found. Error Code: VIDEO_CLOUD_ERR_VIDEO_NOT_FOUND Session ID: 2020-06-23:9fc2eafe3ee1515b1d3c166d Player ID: vjs_video_3 OK ! The Video Cloud video was not found. Error Code: VIDEO_CLOUD_ERR_VIDEO_NOT_FOUND Session ID: 2020-06-23:4f6a4baffb7f9753d4798dd0 Player ID: feelings-video OK ! Risks of the freeway How close are you?Tell us your story 4.1.g Packet Pg. 218 ADVERTISEMENT Cedar Point 84 single-family homes in San Bernardino County suburb of Chino Built in 2015 along one of California’s busiest diesel truck corridors 4-bedroom houses by Frontier Communities sell for around $600,000 c Tell us your story residential development. Or they could strengthen building standards — asthey have for seismic reasons — forcing developers to design buildings in a way that reduces residents’ exposure to polluted air. “If there's a political will to protect people from this type of development then cities certainly know how to use zoning to accomplish that,” said James Kushner, an expert in land-use, development and urban planning at Southwestern Law School. Thousands of homes approved near L.A. freeways Use the slider to see where the city has issued building permits within a 1,000 feet of a freeway since 2005. 2005 Sources: Los Angeles Department of Building and Safety, L.A. County Assessor, OpenStreetMap See the data ì One of the only attempts at a ban on development occurred several years ago when the L.A. County Department of Public Health proposed language in the county’s general plan to prohibit new housing within 500 feet of freeways, citing the adverse health effects. County planners ultimately rejected the idea. The failure of such restrictions to gain traction has left some local officials wondering if the only way to keep cities from building more homes near freeways is through a state law. One precedent is a 2003 law California passed prohibiting the construction of new public schools within 500 feet of freeways out of concern for children’s health. But school districts have used exceptions in the law to keep building. Meanwhile, the residential developments that are rising next to freeways continue to spread not just through the urban core, but across the region. One of those new neighborhoods is Cedar Point, a subdivision of one and two-story houses in the San Bernardino County suburb of Chino. The development was built on land that had been re-zoned for housing in a special election paid for by a real estate company. It sits about 100 feet from the 60 Freeway. More than 220,000 vehicles motor by each day on this major freight corridor, including some 27,000 big-rig trucks whose diesel engines cough out many times more harmful pollutants than cars. In January 2015, the South Coast air district sent a letter to Chino officials warning that freeway pollutants would threaten the health of residents in the new homes. A few months later, the building site swarmed with construction workers and heavy equipment. Dennis Yates, former mayor of Chino who served more than 12 years on the region’s air quality board, said that as mayor he encouraged the developer to put in higher-rated air filters, but acknowledged he “personally wouldn’t live there.” Among those who did move into one of Cedar Point's four-bedroom houses was Mike Sanchez, his wife and two young daughters. Buying so close to traffic was a difficult decision, he said, but “one of the sacrifices we made to get into a new home.” Back on the Westside of Los Angeles, Jeremiah Caleb, who spent years battling black road dust and illness while living in an apartment next to the 405, said he and his wife were relieved when she landed a nursing job — a second income that allowed them to move to a less-polluted neighborhood about a mile from any freeway. Their health has improved, with their once-constant headaches and respiratory problems now a rarity. “I can leave my doors open and I'm breathing fresh air all the time,” he said. “We got lucky. But for most people . . . They're stuck because that's what they can afford.” How we reported the story How we measured housing growth Under the California Public Records Act, The Times obtained a database of building permits from the City of Los Angeles dating to 2005, the year state air quality regulators began warning against building near freeways. We counted the number of new housing units in the database that were within 1,000 feet of a freeway. The city began flagging developments at that distance as a concern in 2012 based on a growing body of science linking roadway pollution to health problems. Download building permit data: la-city-permits.xlsx How we counted people We analyzed U.S. Census Bureau data to count the number of people living within 500 feet and within 1,000 feet of a Southern California freeway. We used census blocks, the smallest geographical unit available, to compare the population in 2000 with 2010, the most recent years with that level of detail. The 500-foot zone was included because it is where the California Air Resources Board advises cities to avoid siting new homes, schools, child care centers, medical facilities and other “sensitive land uses.” We built a map of the high-pollution zones near freeways using data from local and regional planning agencies and satellite imagery. We added census blocks to that map, then estimated the number of people within 500 feet and within 1,000 feet of a freeway. For blocks that were partially outside those zones, we counted people in proportion with the area of the block inside the zone. For instance, a census block with 100 people that was 50% inside the freeway zone would be counted as 50 people. Download the GIS files: freeway_files.zip How we took air quality readings Using two portable air quality sensors borrowed from USC, we took measurements of tiny pollutants known as ultrafine particles that are emitted from vehicles. Over a 20-minute period, one reporter measured the air near the freeway while another took readings 1,500 to 1,800 feet downwind. We also tracked wind speed, wind direction, humidity and temperature on-site. The results were reviewed by scientists at the South Coast Air Quality Management District and USC. Download the air quality measurements: pollution-testing.xlsx Contact the reporters. Follow @tonybarboza and @gaufre on twitter. Credits: Times Staff Writer David Zahniser contributed to this report. Produced by Andrea Roberson. Satellite imagery via Google Earth More from the Los Angeles Times One solution to Southern California's housing crisis: building in tight spaces, small lots Caltrans will begin selling homes along the 710 Freeway corridor No surprise here: Los Angeles is the world's most traffic-clogged city, study finds The surprising link between air pollution and Alzheimer’s disease Terms of Service | Privacy Policy | About Our Ads | © 2020 | About This Site By continuing to use our site, you agree to our Terms of Service and Privacy Policy. You can learn more about how we use cookies by reviewing our Privacy Policy.Close 4.1.g Packet Pg. 219 USC Enviro Health 4 Jun In this article, Keck Medicine of USC experts say there are steps that protesters can take to stay as safe and healthy as possible, both physically and mentally. @KeckMedUSC @KECKSchool_USC http://ow.ly/aEro50zZcvK Reply on Twitter 1268627288406528002Retweet on Twitter 1268627288406528002 1Like on Twitter 1268627288406528002 Twitter 1268627288406528002 Retweet on Twitter USC Enviro Health Retweeted Rima Habre, ScD 3 Jun We are looking for #ExposureScience courses/workshops, live or pre-recorded, for @ISES2020CA . Pls RT and reach out to sign up! @ISEE_global @isiaq @EPAresearch @CaliforniaEPA @CaliforniaDTSC @ISofExposureSci @HarvardChanSPH @harvard_data @USCEnviroHealth @UNEP Reply on Twitter 1268235167195254784 7Retweet on Twitter 1268235167195254784 12Like on Twitter 1268235167195254784 Twitter 1268235167195254784 USC Enviro Health 3 Jun We stand in solidarity with the black community. We recognize that structural racism and violence creates health disparities and environmental INJUSTICE. We believe anti-racist actions, teaching and governance are essential to achieve health equity and social justice. Reply on Twitter 1268221912435486721Retweet on Twitter 1268221912435486721 5Like on Twitter 1268221912435486721 Twitter 1268221912435486721 USC Enviro Health @USCEHC on Facebook @USC_EH_Outreach on Twitter @USCEHC on Instagram USC Environmental Health Centers Current news, events and research projects of the Environmental Health Centers based at USC USC Environmental Health Centers Proudly powered by WordPress About us Community Engagement Infographics References: Living Near Busy Roads or Traffic Pollution Please note: in the following citations, authors whose names are shown in red are/were scientists with, or are/were otherwise affiliated with, our Southern California Environmental Health Sciences Center or Children’s Environmental Health Center at USC at the time of publication. Pregnant Women Pregnant women are particularly vulnerable to air pollution, including pollution near busy roads and freeways. Studies show that women may develop high blood pressure or diabetes during pregnancy if they are close to high levels of air pollution. This type of diabetes is called “gestational” and often goes away after the baby is born. Some pregnant women develop an illness called “pre-eclampsia” that can result in high blood pressure and possible kidney damage. Below are selected health studies on these topics. Gestational diabetes Malmqvist E, Jakobsson K, Tinnerberg H, Rignell-Hydbom A, Rylander L. (2013). Gestational diabetes and preeclampsia in association with air pollution at levels below current air quality guidelines. Environmental Health Perspectives, 121(4): 488-93. High Blood Pressure or Preeclampsia Wu M, Ries JJ, Proietti E, Vogt D, Hahn S, Hoesli I. (2016). Development of Late-Onset Preeclampsia in Association with Road Densities as a Proxy for Traffic-Related Air Pollution. Fetal Diagnosis and Therapy, 39(1): 21-27. Mobasher Z, Salam MT, Goodwin TM, Lurmann F, Ingles SA, Wilson ML. (2013). Associations between ambient air pollution and Hypertensive Disorders of Pregnancy. Environmental Research, 123: 9-16. Pereira G, Haggar F, Shand AW, Bower C, Cook A, Nassar N. (2013). Association between pre-eclampsia and locally derived traffic-related air pollution: a retrospective cohort study. Journal of Epidemiology and Community Health, 67(2): 147-152. Wu J, Ren C, Delfino RJ, Chung J, Wilhelm M, Ritz B. (2009). Association between local traffic-generated air pollution and preeclampsia and preterm delivery in the south coast air basin of California. Environmental Health Perspectives, 117(11): 1773-1779. Developing Fetus and Babies Many harmful health problems can happen to a developing fetus when a pregnant mother lives near high levels of air pollution, including pollution from traffic. There have been studies for a number of years on low-birth weight and babies being born early, and recently studies have found changes to the developing brain. This might lead to behavior or learning or other “cognitive” problems, including autism, ADHD, and schizophrenia. Below are selected health studies on these topics. Low birth weight (weigh less when born) or growth retardation (fetus is slower growing) Wilhelm M and Ritz B. (2003). Residential proximity to traffic and adverse birth outcomes in Los Angeles County, California, 1994-1996. Environmental Health Perspectives, 111(2): 207–216. Ritz B, Qiu J, Lee PC, Lurmann F, Penfold B, Erin Weiss R, McConnell R, Arora C, Hobel C, Wilhelm M. (2014). Prenatal air pollution exposure and ultrasound measures of fetal growth in Los Angeles, California. Environmental Research, 130: 7-13. Born Early (also called preterm or premature birth) Laurent O, Hu J, Li L, Cockburn M, Escobedo L, Kleeman MJ, Wu J. (2014). Sources and contents of air pollution affecting term low birth weight in Los Angeles County, California, 2001-2008. Environmental Research, 134: 488-495. Wilhelm M, Ghosh JK, Su J, Cockburn M, Jerrett M, Ritz B. (2011). Traffic-related air toxics and preterm birth: a population-based case-control study in Los Angeles County, California. Environmental Health, 10: 89. Problems with behavior, learning, autism or other disorders of the developing brain Behavior Perera FP, et al. (2014). Early-life exposure to polycyclic aromatic hydrocarbons and ADHD behavior problems. PLoS One, 9(11): e111670. Learning Guxens M, et al. (2014). Air pollution during pregnancy and childhood cognitive and psychomotor development: six European birth cohorts. Epidemiology, 25(5): 636-47. Autism Woodward N, Finch CE, Morgan TE. (2015). Traffic-related air pollution and brain development. AIMS Environmental Science, 2(2): 353-373. Allen JL, Oberdorster G, Morris-Schaffer K, Wong C, Klocke C, Sobolewski M, Conrad K, Mayer-Proschel M, Cory-Slechta DA. (2015). Developmental neurotoxicity of inhaled ambient ultrafine particle air pollution: Parallels with neuropathological and behavioral features of autism and other neurodevelopmental disorders. Neurotoxicology. Raz R, Roberts AL, Lyall K, Hart JE, Just AC, Laden and Weisskopf MG. (2015). Autism spectrum disorder and particulate matter air pollution before, during, and after pregnancy: a nested case–control analysis within the Nurses’ Health Study II cohort. Environmental Health Perspectives, 123: 264–270. Volk HE, Kerin T, Lurmann F, Hertz-Picciotto I, McConnell R, Campbell DB. (2014). Autism spectrum disorder: interaction of air pollution with the MET receptor tyrosine kinase gene. Epidemiology, 25(1): 44- 7. Volk HE, Lurmann F, Penfold B, Hertz-Picciotto I, McConnell R. (2013). Traffic-related air pollution, particulate matter, and autism. JAMA Psychiatry, 70(1): 71-77. Pedersen CB, Raaschou-Nielsen O, Hertel O, Mortensen PB. (2004). Air pollution from traffic and schizophrenia risk. Schizophrenia Research, 66(1): 83-85. Children For children who live or go to school near high levels of air pollution when they are young (or even before they were born), this can lead to health problems. These include lungs not working and growing as fast as they should, if exposed to pollution when they were young. Children can also develop asthma from air pollution near busy roads, are also likely to go to the hospital for asthma attacks. Studies show more ear, nose, and throat infections for children who are near this kind of air pollution from traffic. New studies may link a higher chance of obesity in children who live near busy traffic or if their mothers were regularly near traffic pollution when pregnant. Below are selected health studies on these topics. Asthma Sbihi H, Tamburic L, Koehoorn M, Brauer M. (2016). Perinatal air pollution exposure and development of asthma from birth to age 10 years. European Respiratory Journal, 47(4): 1062-1071. McConnell R, Islam T, Shankardass K, Jerrett M, Lurmann F, Gilliland F, Gauderman J, Avol E, Kunzli N, Yao L, Peters J, Berhane K. (2010). Childhood incident asthma and traffic-related air pollution at home and school. Environmental Health Perspectives, 118(7): 1021-1026. McConnell R, Berhane K, Yao L, Jerrett M, Lurmann F, Gilliland F, Kunzli N, Gauderman J, Avol E, Thomas D, Peters J. (2006). Traffic, susceptibility, and childhood asthma. Environmental Health Perspectives, 114: 766-72. Hospitalization for asthma Lin S, Munsie JP, Hwang SA, Fitzgerald E, Cayo MR. (2002). Childhood asthma hospitalization and residential exposure to state route traffic. Environmental Research, 88(2): 73-81. Ear, nose, throat infections Berhane K, Chang C-C, McConnell R, Gauderman WJ, Avol E, Rapapport E, Urman R, et al. (2016). Association of changes in air quality with bronchitic symptoms in children in California, 1993-2012. Journal of the American Medical Association, 315(14), 1491-1501. Brauer M, et al. (2007). Air pollution and development of asthma, allergy and infections in a birth cohort. European Respiratory Journal, 29(5): 879-888. Brauer M, et al. (2002). Air pollution from traffic and the development of respiratory infections and asthmatic and allergic symptoms in children. American Journal of Respiratory and Critical Care Medicine, 166(8): 1092-8. Smaller lungs for life Gauderman WJ, Urman R, Avol E, Berhane K, McConnell R, Rappaport E, Chang R, Lurmann F, Gilliland F. (2015). Association of Improved Air Quality with Lung Development in Children. The New England Journal of Medicine, 372(10): 905–913. Gauderman WJ, Vora H, McConnell R, Berhane K, Gilliland F, Thomas D, Lurmann F, Avol E, Kunzli N, Jerrett M, Peters J. (2007). Effect of exposure to traffic on lung development from 10 to 18 years of age: a cohort study. The Lancet, 369(9561): 571-7. Gauderman WJ, Avol E, Gilliland F, Vora H, Thomas D, Berhane K, McConnell R, Kunzli N, Lurmann F, Rappaport E, Margolis H, Bates D, Peters J. (2004). The effect of air pollution on lung development from 10 to 18 years of age. The New England Journal of Medicine, 351: 1057-67. Obesity McConnell R, Gilliland FD, Goran M, Allayee H, Hricko A, Mittelman S. (2016). Does near-roadway air pollution contribute to childhood obesity? Pediatric Obesity, 11(1): 1-3. McConnell R, Shen E, Gilliland FD, Jerrett M, Wolch J, Chang CC, Lurmann F, Berhane K. (2015). A longitudinal cohort study of body mass index and childhood exposure to secondhand tobacco smoke and air pollution: the Southern California Children’s Health Study. Environmental Health Perspectives, 123(4): 360-366. Teenagers Many of the health problems from air pollution (described above) for children can go into the teenage years. For teenagers, by the time they have graduated from high school or soon after, most teens’ lungs will have reached “maturity,” meaning they will not likely grow any further. So if a teen’s lungs are smaller or don’t work as well at age 18, the lungs may not grow and get healthier as they grow into and adult. Below are selected health studies on these topics. Smaller lungs for life if exposed since early childhood Gauderman WJ, Vora H, McConnell R, Berhane K, Gilliland F, Thomas D, Lurmann F, Avol E, Kunzli N, Jerrett M, Peters J. (2007). Effect of exposure to traffic on lung development from 10 to 18 years of age: a cohort study. The Lancet, 369(9561): 571-577. Gauderman WJ, Urman R, Avol E, Berhane K, McConnell R, Rappaport E, Chang R, Lurmann F, Gilliland F. (2015). Association of Improved Air Quality with Lung Development in Children. The New England Journal of Medicine, 372(10): 905–913. Adults Several recent studies show that being near air pollution for a long time over your life can give people a higher chance of having heart problems. This is for ambient pollution (regional pollution that everyone in a community breathes) and traffic pollution (near-roadway pollution). This pollution can lead to more cardiovascular (heart) disease, and being near air pollution for a long time over your life can lead to more deaths from heart disease. There are now more studies showing links between traffic pollution and stroke. One study showed that sudden cardiac deaths (including from stroke) is linked to traffic exposure in middle-aged women. Below are selected health studies on these topics. Heart Disease Gold DR and Mittleman MA. (2013). New insights into pollution and the cardiovascular system: 2010 to 2012. Circulation, 127(18): 1903-1913. Raaschou-Nielsen O, et al. (2012). Traffic air pollution and mortality from cardiovascular disease and all causes: a Danish cohort study. Environmental Health, 11: 60. Brook RD, et al. (2010). Particulate matter air pollution and cardiovascular disease: An update to the scientific statement from the American Heart Association. Circulation, 121(21): 2331-2378. Newby DE, et al. (2014). Expert position paper on air pollution and cardiovascular disease. European Heart Journal, 36(2): 83-93b. Kunzli N, Jerrett M, Garcia-Esteban R, Basagana X, Beckermann B, Gilliland F, Medina M, Peters J, Hodis HN, Mack WJ. (2010). Ambient air pollution and the progression of atherosclerosis in adults. PLoS One, 5: e9096. Stroke Brook RD, et al. (2010). Particulate Matter Air Pollution and Cardiovascular Disease. An Update to the Scientific Statement From the American Heart Association. Circulation, 121(21): 2331-78. Seniors (middle aged adults and older) One study of women with an average age greater than 60 were more likely to die from sudden cardiac deaths (including heart disease and stroke) if they lived near traffic pollution. Some studies have linked road traffic noise to stroke, but another study found that traffic air pollution was linked to stroke even when noise was taken into account. Several studies show that traffic pollution is linked to premature death (dying younger than one might have otherwise). Below are selected health studies on these topics. Heart Attacks and Stroke Hart JE, et al. (2014). Roadway proximity and risk of sudden cardiac death in women. Circulation, 130(17): 1474-82. Hoffmann B, et al. (2015). Air quality, stroke, and coronary events: results of the Heinz Nixdorf Recall Study from the Ruhr Region. Deutsches Ärzteblatt International, 112(12): 195-201. Lung Problems Lepeule J, et al. (2014). Long-term effects of traffic particles on lung function decline in the elderly. American Journal of Respiratory and Critical Care Medicine, 190(5): 542-8. Memory Problems Gatto NM, Henderson VW, Hodis HN, St John JA, Lurmann F, Chen JC, Mack WJ. (2014). Components of air pollution and cognitive function in middle-aged and older adults in Los Angeles. Neurotoxicology, 40: 1-7. Chen, H, et al. (2017). Living near major roads and the incidence of dementia, Parkinson’s disease, and multiple sclerosis: a population-based cohort study. The Lancet. Online 04 January 2017. Shorter Life Jerrett M, et al. (2013). Spatial analysis of air pollution and mortality in California. American Journal of Respiratory and Critical Care Medicine, 188(5): 593-599. Hoek G, et al. (2002). Association between mortality and indicators of traffic-related air pollution in the Netherlands: a cohort study. The Lancet, 360(9341): 1203-9. Search … Follow Load More... / 4.1.g Packet Pg. 220 Land Use 101 A Field Guide By: Christine Dietrick, City Attorney Jon Ansolabehere, Assistant City Attorney City of San Luis Obispo INTRODUCTION This paper provides a general overview of the fundamental principles and legal concepts of Land Use and Planning Law. This paper will cover: the foundations of city land use authority through the constitutional police power; basis for challenging public ag ency decisions; the requirements for and relationships between general plans, specific plans, zoning and subdivision regulations and development agreements; basic environmental review requirements under CEQA; vested rights principles; an overview of design , conservation, and historic preservation tools; the general rules governing development fees, exactions and takings analyses; state and local affordable housing requirements; and the requirements for due process proceedings and administrative findings in the land use context. We hope you find the paper helpful and that it serves as an easy to use resource for municipal land use attorneys. THE POLICE POWER Virtually every reference guide on Municipal Law begins with the premise that a city has the police power to protect the public health, safety and welfare of its residents. See Berman v. Parker , (1954) 348 U.S. 26, 32 -33. This right is set forth in the California Constitution, which states “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” Cal. Const. at. XI, section 7. The ability to enact ordinances to protect the health, safety and welfare is important in the land use context because it confers very broad rights to adopt regulations that implement local land use vision and values, so lon g as laws enacted by a city are not in conflict with state general laws. This concept is critical because new practitioners often look to cite to a specific statute as the legal authority to adopt an ordinance when, in fact, a city’s broad land use authori ty flows directly from the constitution in the absence of a statutory prohibition or preemption of the city’s otherwise regulatory authority. Land use and zoning regulations are derivative of a City’s general police power. See DeVita v. County of Napa , (19 95) 9 Cal. 4 th 763, 782; see also Big Creek Lumber Co. v. City of Santa Cruz , (2006) 38 Cal. 4th 1139, 1159. This power allows cities to establish land use and zoning laws which govern the development and use of the community. In Village of Belle Terre v. Boraas, (1974) 416 U.S. 1, the U.S. Supreme Court addressed the scope of such power and stated: “The police power is not confined to 1 4.1.g Packet Pg. 221 elimination of filth, stench and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Id at 9. One seminal land use and zoning case under scoring a city’s police power was Wal-Mart Stores Inc. v. The City of Turlock, (2006) 138 Cal. App. 4 th 273, 303 where, in response to concerns over the impacts of big box stores, particularly Wal -Mart, the City of Turlock adopted an ordinance prohibiting the development of discount superstores. Wal -Mart challenged the ordinance, stating the city had exceed ed its police power, but the Court disagreed. The court found the police power allows cities to “control and organize development within their boundaries as a means of serving the general welfare.” Id at 303. The important issue to understand in that case was the language of the ordinance itself. The ordinance did not, and legally could not, target specific tenants which were perceived as causing the certain impacts. However, the city could control the use and development standards of property within its co mmunity which, in effect, prohibited only a handful of big box retailers, including Wal -Mart. Another case that highlights the city’s police power, especially at the micro -level, is Disney v. City of Concord , (2011) 194 Cal.App.4 th 1410. In that case, the City of Concord adopted an ordinance restricting the storage and parking of recreational vehicles in residential yards and driveways. Among other things, the City of Concord’s ordinance limited the number of RVs on any residential property to two, required RVs to be stored in side and rear yards behind a six foot high opaque fence, prohibited RVs from being stored on front yards and driveways (with some exceptions) and established maintenance standards for RVs within the public view. James Disney filed suit . His main argument was that the ordinance exceeded Concord’s police power. The Court determined that the City of Concord’s Ordinance was a valid exercise of the city’s police power, where the ordinance had an aesthetic purpose. Citing Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 858, the Court stated “It is within the power of the Legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.” Again , as echoed by Village of Belle, supra, a city’s police power is not limited to regulating just stench and filth. Preemption. Although a city’s police power is broad, it is not absolute, and cannot conflict with the State’s general laws. A conflict exists between a local ordinance and state law if the ordinance “duplicates, contradicts or enters an area fully occupied by general law, either expressly or by legislative implication.” Viacom Outdoor Inc. v. City of Arcata , (2006)140 Cal. App. 4 th 230, 236. PRACTICE NOTE FOR CHARTER CITIES : Charter cities enjoy additional constitutional freedom to govern their “municipal affairs” even if a conflict with State law may exist. See Article XI, section 5 of the California Constitution. There is no exact definition of the term “municipal affair” other than those areas expressly stated in section 5. Whether a subject area is a municipal affair (over which a charter city has sovereignty) or one of “statewide concern” (over which the Legislature has authority) is an issue for the courts that depends on the facts and circumstances of each case. Land use and zoning decisions however, have been consistently classified as a municipal 2 4.1.g Packet Pg. 222 affair and charter cities are exempt from various provis ions of the Planning and Zoning Law unless the city’s charter indicates otherwise. See e.g. Gov. Code sections 65803, 65860(d); City of Irvine v. Irvine Citizens Against Overdevelopment , (1994) 25 Cal. App. 4th 868, 874. PRACTICE TIP : Sometimes, the State or federal government preempts a particular area of law because of potential discrimination or disparate impact concerns. For example, California Health and Safety Code section 1566.3 preempts local zoning with respect to residential facilities serving six or fewer mentally disabled or handicapped persons. Practitioners should be cautious about land use decisions that potentially involve a protected class, not only from an equal protection basis, but from a possible preemption basis a s well. WRIT OF MANDATE; HOW CITY LAND USE DECISIONS ARE JUDGED One of the most important perspectives on Land Use and Planning Law is to understand the basis and procedures by which a city’s decisions are challenged. By understanding “which hat” your agen cy is wearing (legislative or adjudicative/quasi -judicial), you will better navigate the contours of legally defensible decisions and how to develop the administrative record to support your agency’s decision. PRACTICE TIP: One way to explain the differenc e between a quasi -legislative decision and a quasi -judicial decision is to state something like: “This is a legislative decision. By taking legislative action, you are being asked to formulate general policies or rules that will apply to future projects, a pplications or factual circumstances of a given type. In contrast, a quasi - judicial/adjudicative decision is one in which a specific project, application or set of facts is being evaluated for compliance with the policy or rule that you have already develo ped (the development of law (legislative) versus the application of law to facts (adjudicative).” Traditional Writ of Mandate – the Legislative or Quasi-legislative Hat. Traditional Mandamus is the form of an action to challenge a ministerial or quasi -legislative act of a city. California Water Impact Network v Newhall County Water Dist. (2008) 161 CA4th 1464, 1483. The statutory authority for this type of action is Code o f Civil Procedure sections 1085 et seq. A ministerial duty is imposed on a person in public office who, because of that position, is obligated to perform in a legally prescribed manner when a given state of facts exists. County of Los Angeles v. City of Lo s Angeles (2013) 214 CA 4th 643, 653. A ministerial duty is one that does not involve any independent judgment or discretion. Id at 653. Traditional Mandamus is only available if the person claiming such relief has a “substantial beneficial interest” and “there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” Code of Civ. Proc. section 1086. A “substantial beneficial interest” means “a clear, present and beneficial right” to the performance of a ministerial duty. California Ass’n of Med. Prods. Suppliers v. Maxwell-Jolly (2011) 199 CA4th 286, 302. This is similar to a standing requirement. Even for a discretionary decision, Traditional Mandamus is available to compel the exercise of that discretion. Daily Journal Corp. v. County o f Los Angeles (2009) 172 CA 4th 1550, 1555. In other words, Traditional Mandamus may be used to require someone to make a decision. It cannot be used to shape or 3 4.1.g Packet Pg. 223 otherwise challenge the decision unless that decision constitutes an a buse of discretion. Saleeby v. State Bar (1985) 39 C3d 547, 562. Traditional Mandamus is also available to challenge quasi-legislative acts. California Farm Bureau Fed’n v. State Water Resources Constrol Bd. (2011) 51 C4th 421, 428. Judicial review of quasi-legislative acts is usually limited to determining whether the act was arbitrary or capricious; the act was entirely lacking in evidentiary support; or the city failed to follow the procedures required by law. SN Sands Corp. v. City and County of San Francisco (2008) 167 CA 4th 185, 191. PRACTICE TIP: The standard of review for Traditional Mandamus is low1, generally limited to a court’s review of whether the city has abused its discretion in exercising its legislative authority, and a legislative body has fairly broad discretion in policy adoption subject to review. Still a record that reflects the agency’s reasoning and the need and support for a given action will be a helpful defense no matter what the standard of review. Administrative Writ of Mandate – the Quasi-judicial Hat. An adjudicative or quasi -judicial administrative decision may be challenged by Administrative Mandamus when: a hearing in the underlying administrative proceeding is required by law in which evidence is taken and the decision maker is vested with the discretion to determine contested factual issues. Code of Civ. Proc. 1094.5. Review of these decisions is usually limited to the administrative record. Code of Civ. Proc. section 1094.5(a). The scope of review in Administrative Mandamus proceedings is limited to: whether the agency has proceeded without, or in excess of, jurisdiction; wh ether there was a fair hearing; or whether there was any prejudicial abuse of discretion. Code of Civ. Proc. section 1094.5(b). “Abuse of discretion” is established when: the agency has not proceeded in the manner required by law; the order or decision is not supported by the findings; or the findings are not supported by the evidence. See Leal v. Gourley, (2002) 100 CA 4th 963, 968. The standard of review for Administrative Mandamus is usually the substantial evidence test, however, when the underlying decision substantially affects a fundamental vested right, the independent judgment test applies. Code of Civ. Proc. section CCP §1094 .5(b)-(c); Goat Hill Tavern v City of Costa Mesa (1992) 6 CA4th 1519, 1525. Under the substantial evidence test, a court determines if there is substantial evidence to support the findings and if the findings support the decision. Under this test, the cour t accords significant deference to the administrative fact -finder. Bedoe v. County of San Diego (2013) 215 CA 4th 56, 61. 1 Courts have consistently refused to substitute judicial judgment for the legislative judgment of the governing body of a local agency. So long as the legislative decision bears a reasonable relationship to the public welfare, it is upheld. See Ass’n. Home Builders, Inc. v. City of Livermore, (1976) 18 Cal. 3d 582, 604. California Hotel & Motel Ass’n v. Indust Welfare Comm’n, (1979) 25 Cal. 3d 200, 211-212 [judicial review is limited “out of deference to the separate of powers between the Legislature and the judiciary [and] and to the legislative delegation of administrative authority to the agency.”] Of course, there is a caveat if some sort of heightened scrutiny is involved. 4 4.1.g Packet Pg. 224 PRACTICE TIP: To the greatest extent possible, make sure your city’s resolutions and ordinances relating to entitlements include all necessary findings required by statute or ordinance to support an entitlement or approval and use your findings as an opportunity to “connect the dots” between each finding and the facts in the record supporting that finding. Though not specifically required in most cases, you may also want to consider including similar findings to support controversial legislative actions as a way to tell the City’s story. Although sometimes difficult, don’t let your resolutions become purely template documents with little connection to the underlying decision. In contrast, under the Independent Judgment standard, the court affords no deference to the factu al assessments of the administrative fact finder. Welch v. State Teachers’ Retirement Sys , (2012) 203 CA 4 th 1, 5. In the land use context, when a development approval has been denied in the first instance, it is highly likely that the Substantial Evidence test will be applied. Even if a conditioned permit affects a “fundamental” right, the right may not be “vested” for Independent Judgment purposes. With a vested right, the substantial evidence test applies. See Break-Zone Billiards v. City of Torrance (2000) 81 CA 4 th 1205. The Independent Judgment test usually applies in cases involving classic vested rights, such as the right to continued operation of one’s business. Goat Hill Tavern, supra . RELEVANT LAWS Now that we have introduced to you the overarching principles of the police power and discussed the way land use decisions are challenged, there are several statutory schemes with which every land use practitioner should be familiar. These statutes regulat e, in one way or another, virtually every land use and planning issue. They include: 1. Planning and Zoning Law, Government Code sections 65000 – 66035; 2. Subdivision Map Act, Government Code sections 66410 – 66499.58; 3. Environmental Quality Act (CEQA), Public Resources Code sections 21000 – 21189.3, 14 CCR 15000 – 153872; 4. Ralph M. Brown Act, Government Code sections 54950 – 54963 – although the Brown Act is not specifically a “land use law,” every practitioner counseling any public agency must be intimately familiar with these open meeting laws; 5. Mitigation Fee Act, Government Code sections 66000 – 66008. PRACTICE TIP: Create a “meeting folder,” including the main provisions of each statute referenced above. We typically have provisions from and/or reference guides on these provisions at every meeting involving a land use issue. American Council of Engineering Companies provides good reference guides that are compact, succinct and easy to transport to meetings. 2 These are also known as the CEQA Guidelines. 5 4.1.g Packet Pg. 225 THE GENERAL PLAN, SPECIFIC PLANS AND ZONING REGULATIONS The General Plan. California Planning and Zoning Law requires each city to prepare and adopt “...a comprehensive, long term general plan for the physical development of the...city, and of any land outside its boundaries...” Gov. Code section 65300. Under Gov. Code Section 6 5302, each General Plan must include the following elements: 1. Land Use Element; 2. Circulation Element; 3. Housing Element; 4. Conservation Element; 5. Open Space Element; 6. Noise Element; and 7. Safety Element. Gov. Code Section 65302 also sets forth particular requirements that must be included in each of the seven elements. One of the more scrutinized elements of a General Plan is the Housing Element which, among other things, must show that the agency’s land u se and zoning designations contribute to the attainment of State housing goals regarding affordable, transitional and supportive housing. PRACTICE TIP: Be cognizant of the various components that must be included in each of the elements of the General Plan and make sure that policy discussion at either the Planning Commission or City Council respects State -mandated land use requirements such as affordable housing. These requirements can encounter tension with local objectives to limit growth or constrain de velopment. PRACTICE NOTE: For those public agencies that have an airport within or in immediate proximity to their jurisdiction, additional requirements and referrals for the review and comment by outside agencies are necessary to make sure that a General Plan and any updates are consistent with the jurisdiction’s Airport Land Use Plan. Pub. Util. Code section 21675. Government Code section 65583(c) requires the Housing Element to establish a program setting forth a schedule of actions to implement the Housing Element’s policies. Over the course of the last ten years or so, we have seen a shift towards more specific pr ogram/schedule language required by Housing and Community Development (“HCD”) for each Housing Element update. Adoption and amendment of a General Plan is a “project” under CEQA and therefore, environmental review must be performed. City of Santa Ana v City of Garden Grove (1979) 100 CA3d 521. Adopting or amending the General Plan must be done in accordance with Go vernment Code section 35350 et seq. A general law city may not amend any of the seven mandatory elements of its General Plan more than four times per year. Gov . Code section 65358(b). 6 4.1.g Packet Pg. 226 PRACTICE TIP: Most public agencies “group” General Plan amendments for various projects quarterly to comply with the amendment limitations of section 65358(b). PRACTICE TIP: The social realities of development may outpace General Plan updates. Careful consideration must be given to make sure that enough flexibility is built into the General Plan to account for planning trends. For example, many cities across California are e xperiencing a social desire for multi-modal transportation design and development projects are being put forward that advance this method of design. Unfortunately, certain policies and planning frameworks may not be well suited to properly account for this change. For example, traffic impact analysis has historically been analyzed based on Level of Service and trip generation. New methodologies are being put forward, and in some ways mandated, to account for bimodal or multimodal transportation. Policies th at too narrowly incorporate traditional or existing methodologies risk becoming quickly outdated, driving a need for frequent revision and undermining the utility of the General Plan as a forward -looking community vision document. Because of the comprehens ive nature of General Plan documents, they often take months, if not years, to adopt or significantly update and the legal issues surrounding the adequacy of a General Plan are certainly the subject of treatises beyond the scope of this paper. However, the “take away” is that the General Plan needs to be visionary, but also must give enough guidance and particularity to provide clear context for the subsequent planning decisions and approvals that will flow from and must be consistent with the General Plan (i.e., specific plans, zoning regulations, and map, project and permit approvals). General Plan Consistency. General Plan consistency is looked at in two ways – (1) internal consistency; and (2) vertical consistency. Internal Consistency. Government Code s ection 65300.5 requires a General Plan to be “integrated and internally consistent and compatible state of policies...” In Concerned Citizens of Calaveras County v. Board of Supervisors of Calaveras County , (1985) 166 Cal.App. 3d 90, the County’s General Plan was found internally inconsistent where one portion of the circulation element indicated that roads were sufficient for projected traffic increases, while another section of the same element described increased traffic congestion as a result of continued subdivision development. However, in Friends of Aviara v. City of Carlsbad , (2012) 210 Cal. App. 4 th 1103 the court found that Housing Element Law's requirement that a municipality set forth the means b y which it will “achieve consistency” with other elements of its general plan manifests a clear legislative preference that municipalities promptly adopt housing plans which meet their numerical housing obligations even at the cost of creating temporary in consistency in general plans. 7 4.1.g Packet Pg. 227 Vertical Consistency. As noted above, a General Plan must not only be internally consistent but vertically consistent with other land use and development approvals such as Specific Plans and the agency’s zoning and development regulations. Citizens of Goleta Valley v. Board of Supervisors, (1990) 52 Cal. 3d, 553, 570. Similar to the horizontal consistency requirements discussed above, the requirement to be vertically consistent has been codified in Government Code section 65860(a), which states, County or city zoning ordinances shall be consistent with the general plan of the county or city by January 1, 1974. A zoning ordinance shall be consistent with a city or county general plan only if both of the following conditions are met: (1) The city or county has officially adopted such a plan. (2) The various land uses authorized by the ordinance are compatible with the objectives, policies, general land uses, and programs specified in the plan. In Lesher Communications, Inc. v. City of Walnut Creek , (1990) 52 Cal. 3d 531, 540, the California Supreme Court addressed the importance of vertical consistency in the context of a land use initiative measure. In that case, a “Traffic Control Initiative” was placed on the ballot to establish a building moratorium to combat traffic congestion. The measure passed. The problem the Court faced, however, was the fact that the measure created vertical inconsistency between Walnut Creek’s General Plan and Zoning Regulations. After carefully looking at the language of t he measure, the Court held that: (1) the initiative was not offered as, and could not be construed as, an amendment to the city's general plan, and (2) since the initiative was inconsistent with the general plan in effect when the initiative was adopted, t he measure was invalid. In analyzing the effect of Government Code section 65860(c), the Court stated: We cannot at once accept the function of a general plan as a “constitution,” or perhaps more accurately a charter for future development, and the proposi tion that it can be amended without notice to the electorate that such amendment is the purpose of an initiative. Implied amendments or repeals by implication are disfavored in any case, and the doctrine may not be applied here. The Planning and Zoning Law itself precludes consideration of a zoning ordinance which conflicts with a general plan as a pro tanto repeal or implied amendment of the general plan. The general plan stands. A zoning ordinance that is inconsistent with the general plan is invalid when passed and one that was originally consistent but has become inconsistent must be brought into conformity with the general plan. The Planning and Zoning Law does not contemplate that general plans will be amended to conform to zoning ordinances. The tail does not wag the dog. The general plan is the charter to which the ordinance must conform. (Citations omitted) Id at 540 -41. (emphasis added) Subdivision (c) of section 65860 does not permit a court to rescue a zoning ordinance that is invalid ab initio. As its language makes clear, the subdivision applies only to zoning ordinances which were valid when enacted, but are not consistent with a subsequently enacted or amended general plan. It mandates that such ordinances be 8 4.1.g Packet Pg. 228 conformed to the new general plan, but does not permit adoption of ordinances which are inconsistent with the general plan. The obvious purpose of subdivision (c) is to ensure an orderly process of bringing the regulatory law into conformity with a new or amended general plan, not to permit development that is inconsistent with that plan. Id at 545 -46. The Lesher Communications case illustrates the clear hierarchy between a city’s General Plan and Zoning Regulations and the ultimate supremacy of the General Plan as the guiding document. While most land use approvals are not initiative -based and do not run into the same complications as that which occurred in the Lesher case, the case underscores the importance of General Plan consistency requirements and hig hlights the peril of failing to understand or respect those requirements. Depending on the structure of a city’s municipal code, it will most often be the Planning Director, Planning Commission and City Council that will have the responsibility to determin e whether a proposed land use development is consistent with its General Plan and virtually every planning consideration should begin with this threshold consistency consideration. PRACTICE TIP : Although courts typically defer to a city’s interpretation of its own general plan, you should not lean on deference alone in making sure you have a defensible record. Your land use approval records should reflect a consideration of the consistency requirements and include specific findings and evidence to support e ach of those findings, commensurate with the nature and scope of the approval being granted. Sometimes we see consistency findings that are more or less a regurgitation of the findings themselves, without any articulation of factual, project -specific support. Here is an example of how best to write such findings: POLICY: 2.2.8 Natural Features: Residential developments should preserve and incorporate as amenities natural site features, such as land forms, views, creeks, wetlands, wildlife habitats, and plants. AVOID WRITING FINDINGS LIKE THIS: The project is consistent with Policy 2.2.8 of the General Plan because it preserves and incorporates natural features as amenities. WRITE FINDINGS LIKE THIS WHICH SPECIFICALLY INCLUDES SUPPORTING FACTS: The project is consistent with Policy 2.2.8 of the General Plan because it incorp orates San Luis Creek into the common area and incorporates “greenbelt” designs into the project by permanently preserving open space buffers around the development site. 9 4.1.g Packet Pg. 229 Specific Plans. Specific Plans are hybrid documents that act as a bridge between the General Plan and Zoning Regulations for future development of a particular area. Government Code section 65450 states that a city may prepare a specific plan “for the systematic implement ation of the general plan...” A Specific Plan is adopted in the same manner as a General Plan (Gov. Code section 65453) and is considered a legislative act. PRACTICE TIP: Where a development application is covered by a Specific Plan, be cognizant of the continuing requirements of the Permit Streamlining Act especially for subsequent projects which are exempt from additional CEQA review, to avoid arguments that a subsequent project is deemed approved based on public review of the Specific Plan. See 81 Ops.Ca l.Atty.Gen. 166 (1998). So what is a Specific Plan and what is the point ? For some, the concept of a Specific Plan is far less familiar and its purpose is not entirely clear. There are no black and white rules governing when a Specific Plan is required. Instead, a Specific Plan is a tool that public agencies and developers use t o achieve better specificity on the vision and development potential of a particular tract of land without having to go through extensive site specific land use analysis and entitlement proceedings. It is “programmatic” in nature and usually deals with maj or infrastructure, development and conservation standards and includes an implementation program. See Gov. Code section 65451. Often, a specific plan will establish the “look” and “feel” of what future development on the property will be and it can provide a more clear and refined definition of the parameters in which development will be allowed and the responsibilities for major infrastructure area developers will be expected to fulfill. Specific plans can be very useful to agencies in setting realistic de velopment expectations and signaling important big picture limitations or constraints unique to a particular area; they can be very useful to developers in helping to size the potential and costs of development. Development Agreements. Development Agreemen ts are a unique planning tool authorized by statute pursuant to Government Code section 65864 – 65869.5. A Development Agreement is an agreement between the City and a property owner in which the parties agree to “freeze” all rules, regulation, and policie s that are place as of the execution of the agreement. Gov . Code section 65866; Santa Margarita Area Residents Together v San Luis Obispo County Bd. of Supervisors (2000) 84 CA4th 221. The Development Agreement struc ture, because it is a voluntary, arm’s length negotiation process between a developer and city, may also allow a city to negotiate developer concessions or contributions that it could not otherwise obtain from a developer through normal exactions or condit ions of approval. In some circumstances, development agreements can provide both greater flexibility and greater certainty in the development of large or complex projects. However, it should be noted that Development Agreements are legislative acts and sub ject to referendum, so the flexibility afforded by the tool is also limited by community values. 10 4.1.g Packet Pg. 230 PRACTICE TIP : Because a Development Agreement is a legislative act and participation is voluntary between the parties, no findings are required to grant or deny such an application, although making findings is usually well advised from a community transparency standpo int. Because these types of arrangements are time and resource intensive, they are often reserved for unique circumstances where there is a specific purpose and underlying need for such an arrangement beyond developer convenience. For example, Development Agreements may be appropriate when a city desires redevelopment of a particular area in a manner that requires up front infrastructure investments beyond a particular developer’s “fair share” and a developer desires longer term vesting rights than could be achieved through standard development entitlements so that the developer can obtain financing, among other things. VESTED RIGHTS Under the doctrine of vested rights, if a property owner has received a permit from a public agency to do something, such as a building permit or use permit, and then incurs substantial costs in reliance of that permit, then the property owner has the right to rely on that permit regardless of changes in the public agency’s land use regulations. See Avco Community Developers, Inc . v South Coast Reg'l Comm'n (1976) 17 C3d 785, 793. In Autopsy/Post Service, Inc. v. City of Los Angeles , (2005) 129 Cal. App. 4 th 521, the Court of Appeal held that a property owner did not have vested rights status despite the expenditure of approximate ly $225,000 on the purchase of land and construction costs in reliance of the city’s issuance of a building permit for an autopsy facility. Specifically, the Court found that substantial evidence supported the trial court's finding that the city's grant of a building permit and owner's reliance on it did not create a fundamental vested right to use building for performing autopsies -- a use prohibited by the zoning law. City staff were questioned and stated they had no knowledge, before the issuance of the permit, that the structure was intended for use as an autopsy facility, the plans approved made no reference to an autopsy facility, the building permit application did not reveal the corporate name as owner or tenant, instead naming an individual as the o wner, and product approvals for autopsy tables were issued without reference to the applicant's name or the location where the product would be installed. Id at 527. The Subdivision Map Act has a specific provision which allows a developer to obtain vested rights status with regard to an approved tentative map. Gov. Code section 66498.1(b). Essentially, by placing the word “vesting” on the draft tentative map, a developer obtains the vested right upon tentative map approval to proceed with development in substantial compliance with the ordinances, policies, and standards in place at the time the application for the map was complete (with some exceptions related to health, safety and welfare). Given the numerous statutory extensions (i.e. SB 1185, AB 333, AB 208 and AB 116) the vested status of a tentative map can be significant. THE CALIFORNIA ENVIRONMENTAL QUALITY ACT The California Environmental Quality Act (“CEQA”) is a comprehensive statutory scheme that requires cities and other public agencies to consider the environmental consequences of their actions before 11 4.1.g Packet Pg. 231 approving plans or polices or otherwise committing to a course of action on a project. Typically, the city acts as the lead agency for CEQA environmental review for its projects or projects which fall within its jurisdiction. While CEQA has come to be used as a weapon against development in some contexts, it is fundamentally a process and tool to facilitate environmentally informed decision making. In the big picture, the CEQA process forces public agencies and decision makers to ask and evaluate the answer s to the following questions: 1. What is the current environmental condition in which the subject property is situated? 2. What environmental impacts are likely to result from the public agencies’ approval or decision on a proposed project? 3. Are these potential impacts significant? 4. Are there any alternatives to the proposed project or ways to lessen (mitigate) those impacts of the project so they are not significant? 5. Do those alternatives or mitigation measures render the project infeasible? 6. If so, does the public agency nonetheless want to approve a project with significant environmental impacts because its other benefits outwe igh those unavoidable environmental impacts? PRACTICE TIP : Many CEQA determinations are as much art as science and CEQA analysis is very fact dependent, so there won’t always be clear and unequivocal statutory language or case law to “answer” your environm ental analysis question. However, try to keep in mind that CEQA is supposed to be a tool to guide good decision making and shed light on environmental impacts, not a fog laden maze with traps for the unwary. Take the time to ensure: 1) that your environmental review documents address the questions above; 2) that the questions have actually been answered; 3) that the answers are reasonable and based on the facts and realities of the proposed project; 4) that al l reasonable mitigations have been explored and that those that are reasonable and feasible are required; and 5) that there are clearly understandable and supported reasons for rejecting mitigations and/or proceeding with a project despite significant impa cts. The CEQA review process should be a reasoning process and the result of the analysis should, therefore, be reasonable. If you are not convinced that is the case, it is unlikely a court will be. Keep these fundamental concepts in mind during any CEQA a nalysis as the underlying purpose and intent of CEQA will shed good light on the situation at hand, especially if your situation does not have any good case law or other authority to fall back on. Step 1: Is this a project under CEQA? CEQA defines a project as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: (a) An activity directly undertaken by any public agency; (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies; or (c) An act ivity that involves the issuance to a 12 4.1.g Packet Pg. 232 person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” Pub. Res. Code section 21065; CEQA Guidelines section 15378(a). A “project” under CEQA include s not only the more recognizable activities such as public works projects, grading, or other construction activities but the enactment and amendment of zoning ordinances, annexation, the adoption or amendment of a general plan or even the approval of a con tract which has the ability to cause a direct physical change in the environment. Step 2: Timing of CEQA compliance. CEQA compliance must occur before the public agency approves a project. The term “approves” however, does not mean final approval. Instead, “approval” refers to “the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person.” Or for private projects, “approval occurs upon the earliest commitment to issue or the issuance by the public agency of a discretionary contract, grant, subsidy, loan, or other form of financial assistance, lease, permit, license, certificate, or other entitlement for use of the project. CEQA Guidelines section 15352. The operative p hrase in section 15352(a) is “commits the agency to a definite course of action” which can sometimes occur unexpectedly. For example, in Save Tara v. City of West Hollywood (Waset, Inc.) (2008) 45 Cal 4th 116, the California Supreme Court disapproved a line of cases and held that a lead agency has no discretion to define “approval” so as to make its commitment to a project before preparation of an EIR. Id at 194. Specifically, in that case , the city and two developers entered into an agreement for the development of affordable housing on city -owned land. The agreement was “subject to environmental review,” among other things. The court determined that, in light of all the surrounding circum stances, the city’s agreement with the developer and commitments made foreclosed potential mitigation measures or alternatives that would normally be considered part of the CEQA process. Id at 138 - 142. In other words, the city went “too far” and committe d itself to a definite course of action notwithstanding the CEQA compliance condition it placed in the agreement with the property owner. PRACTICE TIP: If a project is in the design phase or if a significant amount of money is being requested (or both), make sure that your city is not committing to a definite course of action without complying with CEQA. Ask yourself: by this approval, are we foreclosing any alternatives or mitigation measures? 13 4.1.g Packet Pg. 233 Step 3. Is the project exempt? If an action or approval is a project under CEQA, it may be statutorily or categorically exempt from CEQA review or may nevertheless fall under the “general rule” or “common sense” exemption. The list of statutory and categorical exemptions can be found un der CEQA Guidelines sections 15260 – 15285 and 15300 – 15333, respectively. Some of the more commonly referenced exemptions that we see are: Statutory Exemptions 15262 – Feasibility and Planning Studies Categorical Exemptions 15301 – Existing Facilities 15268 – Ministerial Projects 15302 – Replacement or Reconstruction 15269 – Emergency Projects 15304 – Minor Alternations to Land Use 15280 – Lower Income Housing Projects 15305 –Minor Alternations to Land Use Limitations 15306 – Information Collection 15307 – Actions to Protect Natural Resources 15308 – Actions to protect the Environment 15315 – Minor Land Divisions 15317 – Open Space Contracts or Easements 15321 – Enforcement Activities 15332 – In-Fill Development Projects PRACTICE TIP: Note that even if a project is categorically exempt, it may not be exempt if the exception in section 15300.2 applies which states, among other things that “A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances” (CEQA Guidelines section 15300.2(c)) or “...may cause a substantial adverse change in the significance of a historic resource” (CEQA Guidelines section 15300 .2(f)). See also (CEQA Guidelines section 15300.2(a), (b), (d) and (e)). Compare with CEQA Guidelines section 15260, which states that the statutory exemptions “are complete exemptions from CEQA.” CEQA Guidelines section 15260. The CEQA Guidelines provide an additional exemption which is commonly referred to as the “catch -all” or “common sense” exemption. Specifically, the CEQA Guidelines state: “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a sign ificant effect on the environment, the activity is not subject to CEQA.” PRACTICE TIP: If staff is claiming an exemption on the “catch -all” rule under CEQA Guidelines section 15061(b)(3), ask staff what evidence they have to make this determination. The safest route is to prepare an Initial Study. Also make sure that staff is not overusing t his exemption especially if a project is otherwise statutorily or categorically exempt from CEQA review, which will provide a more specific and supportable action. 14 4.1.g Packet Pg. 234 PRACTICE TIP: If a project is utilizing a statutory or categorical exemption specify the precise facts which make the project exempt. Step 4: It’s a CEQA Project. Now what do I do? Study, study, study. The Initial Study . An Initial Study is a preliminary environmental analysis for a project to determine if an Environmental Impact Report (EIR) or a Negative Declaration (ND) is needed. Note that if an EIR will clearly be needed for a project, an Initial Study is not techni cally required. CEQA Guidelines section 15063(a). However, an Initial Study may nevertheless be a good idea to help frame the scope of the EIR (see section below regarding scoping). The Initial Study must include a description of the project, environmental setting, potential environmental impacts, and mitigation measures for any significant environmental effects. CEQA Guidelines Section 15063(d). In describing the project, the Initial Study must look at “...all phases of project planning, implementation and operation...” CEQA Guidelines Section 15063(a). PRACTICE TIP: Although there is no specific format required for an Initial Study, we recommend that public agencies use, at least as the baseline template, the Initial Study found in Appendix G of the CEQA Guidelines. If the results of an Initial Study indicate that a project may have a potentially significant impact, an EIR must be prepared. So do I need to prepare an EIR? The “Fair Argument” Standard. CEQA’s fair argument standard is the critical tipping point for many projects and is one of the areas of CEQA that generates a significant amount of litigation and controversy. EIRs are expensive (often well in excess of $100,000) and take a significant am ount of time to prepare, circulate and approve. As a result, an EIR can effectively kill a project, which is why the fair argument standard is welcomed by project opponents in CEQA litigation. The fair argument standard is set forth in Public Resources Cod e section 21080(d): “If there is substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment, an environmental impact report shall be prepared.” Pub. Res. Code section 21080(d) “Substantial evidence” means “...fact, a reasonable assumption based upon fact, or expert opinion supported by fact. Pub. Res. Code section 21080(e)(1). “Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence th at is clearly inaccurate or erroneous, or evidence of social economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.” The meaning of substantial evidence is probably one of the most critical aspects of any cha llenge to a ND of environmental impact or Mitigated Negative Declaration of environmental impact (MND). As with any controversial project, there are usually some project opponents who simply 15 4.1.g Packet Pg. 235 voice their opposition to the project and who cite CEQA and raise various environmental concerns. However, their statements may not truly rise to the level of constituting “substantial evidence” within the meaning of CEQA. PRACTICE TIP: Know verbatim the fair argument standard and be able to articulate the tests for any agency body considering an environmental determination. Inevitably, every land use practitioner will come across the situation where a Planning Commissioner asks: “Does this ND or MND violate CEQA?” We recommend that you respond by explaining the fair argument standard and what constitutes “substantial evidence,” and advise the body that it must determine whether that standard has been met in light of the underlying record of information before it. Conclusory statements or speculation do not g enerally constitute substantial evidence. For example, just because a concerned neighbor says it will be “too noisy” and “will have a significant impact on the environment” doesn’t necessarily make it so. However, the statement of several neighbors support ed by a noise expert hired by the neighbors who has produced a study suggesting that the city’s methodology is flawed and it has underestimated the noise impacts should warrant further consideration. The difficulty in analyzing what constitutes substantial evidence, even where “expert testimony” is invoked, was well illustrated in Apartment Association of Greater Los Angeles v. City of Los Angeles, (2001) 90 Cal. App. 4th 1162. In that case, the City of Los Angeles adopted a housing code enforcement program. Opponents retained an expert who stated in the administrative record that the enforcement program would require landlords to undertake construction or repair activities “in potentially tens of thousands of apartment and other buildings...use hazardous chemicals to control pests and rodents, and potentially disturb hazardous building materials...” The court found that such expert testimony did not constitute substantial evidence because such opinion w as not expert opinion supported by fact and that such statements were simply “argument, speculation, unsubstantiated opinion or narrative.” Id at 1176. PRACTICE TIP: In reviewing whether a statement constitutes substantial evidence, be mindful of words such as “may”, “could”, “potentially”, “might” and other similar adjectives and to what facts in the record are asserted to support the statements. Whether such statements constitute “substantial evidence” under CEQA will turn on the nexus between such language and whether the data supports the conclusion. The fair argument standard should be understood in light of CEQA’s purpose (informed decision making) and preference for environmental protection, which manifests in this standard that created a “low threshold” for requiring an EIR. See Citizens Action to Serve All Students v. Thornley (1990) 222 Cal. App. 3d 748, 754; Citizens of Lake Murray Area Assn. v. City Council (1982) 129 Cal. App. 3d 436, 440; Mejia v. City of Los Angeles, (2005) 130 Cal. App. 4th 32 2, 332. This “low threshold” is sometimes difficult to accept for both city staff and developers considering the substantial costs and delays associated with the EIR process. However, keep in mind that nowhere in CEQA does the cost or delay play into the d ecision as to whether to prepare an EIR. 16 4.1.g Packet Pg. 236 The ND, MND and NOD (A game of Acronym Soup). If the Initial Study indicates that the project will not have a significant effect on the environment, then the city can prepare a ND. Pub. Res. Code section 21080(c); CEQA Guidelines section 15070 et seq . If the Initial Study indicates that there could be significant impacts, but those impacts can be mitigated to a point of insignificance, then a MND can be prepared. Most projects, especially those involving any sort of construction activity, will include conditions or mitigation measures within the negati ve declaration calculated to reduce any potential environmental impacts to be less than significant. However, conditions or mitigation measures in the MND will not preclude the need to prepare an EIR if information meeting the the fair argument standard di scussed above is introduced into the record. See Pub. Res. Code section 21064.5; CEQA Guidelines section 15070(b)(2). PRACTICE TIP: One recurring problem with MNDs are “deferred” mitigation measures which are generally impermissible under CEQA. For example , in Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296, the court determined that a mitigation measure that required a developer to “prepare a hydrological study evaluating the project’s potential environmental effects” violated CEQA. That said, requirements for future implementation measures are allowed, provided there are adequate performance standards, timing of implementation, and contingency plans in place. CEQA Guidelines 15121.6.4(a). In short, a future requirement to study a potential env ironmental impact is not advisable, but a future requirement for specific mitigation of an identified impact is. PRACTICE TIP : Land use approvals are often challenged either on the fair argument standard or under administrative writ of mandate grounds. Keep in mind who the real party in interest is. Although it is the city’s decision that is subject to challenge, it is the prope rty owner’s entitlement that is at stake. Be sure to include in the conditions of approval for every discretionary permit a well -drafted indemnification, hold harmless and duty to defend provision to protect the city from challenge. If a lawsuit is filed, the City will be able to utilize this condition and tender the defense costs to the real party in interest. For subdivision projects, the Subdivision Map Act provides certain limitations on a property owner’s duty to indemnify – see Government Code section 66474.9. If an ND or MND is prepared, the city must provide the public and specified agencies with a notice of intention. Pub. Res. Code section 21092; CEQA Guidelines section 15072. The public review period must be no less than 20 days. Pub. Res. Code se ction 21092. If the State Clearinghouse is used, the review period is at least 30 days. Pub. Res. Code section 21091(b). PRACTICE TIP: Unless the project is time critical, the best practice is to use the State Clearinghouse to distribute environmental documentation. 17 4.1.g Packet Pg. 237 PRACTICE NOTE: In addition to the lead agency designation, CEQA designates certain other public agencies involved in a project approval as “responsible agencies” and “trustee agencies.” Although participation by each type of agency is important, it is imperative that any trustee agency (e.g., California Fish and Wildlife) be provided notice before the city (as the lead agency) takes action on the project. Otherwise, the city may face a failure to follow procedure argument or the trustee agency can even “take over” the CEQ A review. Once a notice of intention is provided and the ND or MND is approved, the city needs to record a Notice of Determination (NOD). CEQA Guidelines section 15075. PRACTICE TIP: Record the NOD as soon as possible in order to trigger the 30-day statute of limitations on the approval of the ND or MND. STEP 5: The EIR. There are several types of EIRs and which type is appropriate depends on the project being approved. For example, a General Plan update would not utilize a “project EIR”; instead, a General Plan update would utilize a Master EIR. Pub. Res. Code sections 21156 – 21158.5. Scoping. One of the most important initial steps of the EIR process is determining the scope of an EIR. CEQA Guidelines section 15083. This process is essentially a consultation between the city, the developer, responsible and trustee agencies, and sometimes the pu blic, to decide what environmental issues an EIR will focus on. The result of the scoping process is usually two -fold – it (hopefully) removes unnecessary analysis of non -issues and focuses attention on real or legitimately perceived real issues. PRACTICE NOTE: Scoping meetings are not always helpful. However, for projects where the concerns focus on specific and fairly narrow potentially significant environmental impacts, a scoping meeting can be very helpful in tailoring the EIR process to a limited set o f issues. Notice of Preparation. Once an EIR is “scoped”, a City must prepare a Notice of Preparation (NOP) and send it to all responsible agencies, trustee agencies, Office of Planning and Research and any federal agencies who are providing funding or have any part of the approval proces s for the project. Pub. Res. Code section 21080.4; CEQA Guidelines section 15082(a). In addition, the NOP must be sent to any interested person who has requested written notice. Pub. Res. Code section 21092.2. If an agency chooses to respond, the response must contain specific details regarding how, in terms of scope and content, the EIR should treat environmental information related to the responsible or trustee agency’s area of statutory responsibility and must identify the “significant environmental issu es and reasonable alternatives and mitigation measures that the responsible agency or trustee agency, or [OPR] will need to have explored in the draft EIR.” CEQA Guidelines section 15082(b). If you did your homework in the scoping meeting, responses to the NOP should come as no surprise. 18 4.1.g Packet Pg. 238 Preparing the Draft EIR. An environmental consultant will almost always prepare the EIR. Although the project applicant pays for the costs for preparation of an EIR, the EIR must “be prepared directly by, or under contract” with the lead agency. Pub. Res. Code section 21082.1(a); CEQA Guidelines section 15084(a). The EIR must include the following components: 1. Table of Contents or Index; (CEQA Guidelines section 15122) 2. Summary of the proposed actions and their consequences; (CEQA Guidelines section 15123) 3. Project description; (CEQA Guidelines section 15124) 4. Environmental Setting; (CEQA Guidelines section 15125) 5. Evaluation of Environmental Impacts; (CEQA Guidelines sectio n 15126) 6. Water supply assessment –for certain large projects (although there may be some movement in this area of the law and more projects may become subject to this analysis; (Pub. Res. Code section 21151.9; Water Code section 10911(b)) 7. Significant Envir onmental Effects of the Proposed Project; (CEQA Guidelines section 15126.2) 8. Effects Not Found to Be Significant; (CEQA Guidelines section 15128) 9. Mitigation Measures; (CEQA Guidelines section 15126.4) 10. Cumulative Impacts; (CEQA Guidelines section 15130) PRACTICE NOTE : One interesting concept that has arisen is “urban decay”. CEQA Guidelines section 15131 states that economic or social information may be included in an EIR or may be presented in whatever form the agency desires. Subsection (a) states “[e]conomic or soc ial effects of a project shall not be treated as significant effects on the environment.” Subsection (b) however states “[e]conomic or social effects of a project may be used to determine the significance of physical changes caused by the project.” One sit uation where this analysis is commonly utilized is with projects involving big box retailers, most notably Wal -Mart. See Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App. 4 th 1184. The idea behind the analysis is that there will be a physical manifestation of a project’s potential socioeconomic impact. In Bakersfield Citizens for Local Control, there were two proposed Wal-Mart projects less than 5 miles from each other. Economic experts warned that such land use decisions cou ld cause a chain reaction of store closures and long term vacancies, thus destroying existing neighborhoods and leaving decaying shells in their wake. 11. Project Alternatives; (CEQA Guidelines section 15130); 12. Inconsistencies with Applicable Plans; (CEQA Guide lines section 15125(d)) 13. Discussion on Growth Inducing Impacts; (CEQA Guidelines section 15126.2(d)) and 14. Organizations and Persons Consulted. (CEQA Guidelines section 15129). The most robust and time consuming discussions usually revolve around items 4, 5, 7, 8, 9, and 10. 19 4.1.g Packet Pg. 239 Recirculation Issues. One issue that often comes up is if an EIR needs to be recirculated because the document has been changed or new issues have arisen during the public review process. You may find yourself on the receiving end of the following question: “Do we need to recir culate?” The effect of recirculation should not be taken lightly – it costs money, delays final approval of the environmental document, and opens the document up to additional comments and criticisms. On the other hand, failure to recirculate when necessar y exposes the document and CEQA process to challenge. Recirculation is required in four instances: 1. When there is new information that shows a new, substantial environmental impact; 2. When new information shows a feasible alternative or mitigation measure that clearly would lessen environmental impacts, but it is not adopted; 3. When new information shows a substantial increase in the severity of an environmental impact; or 4. When the draft EIR was so fundamentally inadequate and conclusory that meaningful public review and comment were precluded. (CEQA Guidelines section 15088.5(a)) PRACTICE TIP: When in doubt, recirculate the EIR. Approval of an EIR. After the final EIR is complete, the city must make certain findings before it can certify and approve the EIR. Specifically, the city must find that: 1. Changes or alterations have been required in, or incorporated into, the project that mitigate or avoid the significant effects on the environment; 2. Those changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency; or 3. Specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the EIR. Pub. Res. Code section 21081; CEQA Guidelines sections 15091 – 15094. Item 3 is generally referred to as a “statement of overriding conditions.” As with a ND or MND, the city should file a NOD in order to trigger the 30-day statute of limitations on the certification of the EIR. Pub. Res. Code sections 21152(a), (c); CEQA Guidelines section 15075(e). 20 4.1.g Packet Pg. 240 TAKINGS, DEVELOPMENT FEES AND EXACTIONS Takings. Takings analysis begins with the constitutional premise that no private property shall be taken for public use without the payment of just compensation. U.S. Const. 5 th Amend.; see also Cal. Const. art. I section 19. A taking can be in the form of a physic al taking (i.e. physical invasion of property), Loretto v. Teleprompter Manhattan CATV Corporation , (1982) 458 U.S. 419 (State law required property owners to allow cable company to install cable facilities on apartment buildings); denials of all economica lly beneficial use, Lucas v. South Carolina Coastal Council , (1992) 505 U.S. 1003 (regulation barring development on beachfront lots was a taking); partial regulatory takings, Penn Central Transportation Company v. City of New York , (1978) 438 U.S. 104 (hi storic preservation ordinance was not a taking because it did not have any economic impact on the station or interfere with the developer’s investment backed expectations as the railroad could continue to earn a reasonable rate of return; and land use exactions, Nollan v. California Coastal Commission , (1987) 483 U.S. 825 and Dolan v. City of Tigard, (1994)512 U.S. 374. These last two cases are commonly referred to as Nollan/Dolan and were seminal in establishing the appropriate takings analysis for land us e exactions. This paper will focus on this last takings analysis. Nollan/Dolan and the Test of Reasonableness/Nexus Requirement. In California, property development is considered a privilege and not a right. Associated Home Builders, Inc. c. City of Walnut Creek , (1971)4 Cal. 3d 633, 638. However, the Nollan and Dolan cases have limited the extent in which public agencies may condit ion development. Specifically, cities may impose conditions on development so long as the conditions are reasonable and there exists a sufficient nexus between the conditions imposed and the projected burden of the proposed development. Nollan, 483 U.S. at 834-835. Further, cities must prove that such conditions have a “rough proportionality” to the development’s impact. Dollan, 512 U.S. at 391. In order to understand what is meant by these limitations, it is helpful to know the development and conditions i n the underlying cases. In Nollan, a property owner wanted to build a house within the Coastal Zone. The Coastal Commission imposed a condition on the permit, requiring dedication of a lateral access easement along the property owner’s private beach. The rational for the condition was to assist the public in viewing the beach and in overcoming a perceived “psychological barrier” to using the beach. Id. at 435. The Nollan court determined that there was no nexus between the identified impact of the project (obstruction of ocean view by the new house) and the easement condition (physical access across the beach). Similarly, in Bowman v. California Coastal Commission , (2014) 230 Cal. App. 4th 1146, the Court of Appeal found no nexus between a request for a permit to rehabilitate a house and a condition imposed by the Coastal Commission for the property owner to dedicate to the public a lateral easement for public access along the shoreline of his property. Specifically, the Court stated: “We agree with appellants that under Nollan and Dolan, the easement lacks an “essential nexus” between the exaction and the construction. The work occurs within the existing “footprint” of the property.” Id at 1151. 21 4.1.g Packet Pg. 241 In Dolan , a property owner applied for a permit to further develop his property. His plans were to increase the size of his plumbing store (by about double) and pave his 39 -car parking lot. The permit was approved by the City of Tigard with the condition that the property owner dedicate a portion of his property within the 100 year flood plain for improvement of a drainage facility, and dedicate a 15 - foot strip of land adjacent to the flood plain for a pedestrian/bicycle path. The city made numerous findings to sup port the nexus requirement. The Supreme Court held that even though a nexus between the project and the conditions existed, the degree of the takings was not roughly proportional to the development’s impact. The City of Tigard asked for too much in relatio n to the impact that the development presented. PRACTICE TIP: The Nollan/Dolan analysis can be difficult for city staff and the legislative bodies to understand and implement. If the question is asked if a particular condition constitutes a taking under Nollan/Dolan, we recommend that you walk the individual or individuals considering the issue through the following questions so the individual or individuals can articulate a response: 1. What is the impact that this project has on this issue? 2. Does the conditio n serve a legitimate public interest? 3. What is the relationship between the particular impact of the development and the condition? How do they relate to one another? 4. Are the impact and the condition on par with one another? Development Fees (AB 1600). AB 1600, otherwise known as the Mitigation Fee Act, was based on the rational articulated in Nollan and Dolan, and sets forth certain requirements that must be followed by a California city in establishing or imposing a development impact fee. The Act is c odified at Government Code section 66000 – 66025, and requires, among other things, a city to identify the purpose of the fee, identify how it will be used, demonstrate that a reasonable relationship exists between the purpose of the fee and the type of development project on which the fee is imposed, and demonstrate that there is a reasonable relationship between the need for the service or public facility and the type of development project on which the fee is imposed. Gov. Code section 66001(a)-(b). PRACTICE TIP: For the most part, a city’s AB 1600 fees will be established pursuant to fee study. However, it is critical that the public agency also perform the annual and five-year reporting requirements required by Gov. Code sections 66006 and 66001(d), respectively. Failure to report or make the necessary findings could render AB 1600 accounts subject to refund. Note that these fees are different than other statutorily authorized fees, such as Quimby fees. 22 4.1.g Packet Pg. 242 AFFORDABLE HOUSING As noted above, State law requires each city to provide affordable housing to all economic segments. See e.g., Gov. Code section 65008. This paper will briefly touch on some of the various ways affordable housing programs are implemented by the State and at the local level. PRACTICE NOTE: Remember that to further the development of affordable housing within the State, CEQA statutorily exempts certain affordable housing projects from environmental review. Anti-NIMBY laws. Government Code section 65589.5 requ ires a city to make certain findings before it can reject or impose certain conditions on an affordable housing project, including emergency shelters, transitional housing and supportive housing. This statute effectively “flips” the development process and creates a presumption in favor of affordable housing that puts the onus on the city to find that the project would have a specific adverse impact on the health, safety and welfare and that there is no feasible method to mitigate or avoid the impact other than by disapproving the project or imposing certain conditions. Gov . Code section 65589.5(j). Second Units, AKA “Granny Units”. Government Code sections 65852.1 – 65852.2 sets forth the State’s second units law. The purpose of the law was to promote the development of secondary units and to make sure that any requirements imposed by cities are not so onerous as to unreasonably rest rict the creation of such units. Govt. Code section 65852.150. One important component of this statutory scheme is Government Code section 65852.2(a)(b)(3), which states: This subdivision establishes the maximum standards that local agencies shall use to e valuate proposed second units on lots zoned for residential use which contain an existing single -family dwelling. No additional standards, other than those provided in this subdivision or subdivision (a), shall be utilized or imposed, except that a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner -occupant. As a result, most cities’ secondary unit regulations mimic the maximum standards set forth in Government Code section 65852.2(a). Inclusionary Housing. Many public agencies have enacted inclusionary housing ordinances which either encourage or require developers to include a certain percentage of affordable housing units within projects. Many inclusionary housing regulations include the ability to pay an “in-lieu” fee to account for fractional affordable housing requirements or as an alternative to a set -aside requirement. Although inclusionary housing programs have, for the most part, withstood judicial scrutiny (see BIA of Central California v. City of Patterson, (2009)171 Cal. App. 4 th 886; Home Builders Assoc.’n of Northern California v. City of 23 4.1.g Packet Pg. 243 Napa, (2001) 90 Cal. App. 4th 188), fairly recent case law has held that the Costa-Hawkins Act has preempted the field of rental restrictions. Palmer/Sixth Street Properties, L.P. v. City of Los Angeles, (2009) 175 Cal. App. 4th 1396. In Sterling Park v. City of Palo Alto (2013) 57 Ca l.4th 1193, the California Supreme Court held that in - lieu fees were subject to challenge as exactions subject to the statute of limitations under the Mitigation Fee Act, disapproving Trinity Park, L.P. v. City of Sunnyvale , (2011) 193 Cal.App.4th 1014, wh ich held the Mitigation Fee Act did not apply to a below market housing condition and that the Subdivision Map Act’s 90 -day statute of limitations applied. It also held that since Palo Alto required the developer to grant the city an option to purchase the units, the option was an interest in real property that could qualify as an 'exaction' as well and that the developer could use the Mitigation Fee Act's protest procedures to challenge the option as well. The Court did not reach the issue of whether a pur e price control without an option would qualify as an 'exaction.' PRACTICE NOTE : The California Supreme Court, in California Building Industry Association v. City of San Jose , (2013) 307 P. 3d 878, will decide whether inclusionary housing requirements need to be justified by a nexus study or can be adopted based on the police power. Given the uncertainty of the standard of review, many practitioners in this area are advising t hat it seems prudent to complete a nexus study so that the program can continue in the event of an adverse ruling. Density Bonus Law. Government Code sections 65915 – 65918 sets forth the State’s Density Bonus Law, which, among other things, provides developers with a density bonus or other development -related concessions if a developer agrees to construct certain housing developments th at provide either affordable housing or other similar housing. Gov. Code section 65915(a). This law specifically applies to charter cities. Gov. Code section 65918. The amount of th e density bonus and the number of concessions depends on the percentage of units set aside for affordable housing. PRACTICE NOTE: Government Code section 65915 does not set forth the type of concessions that are available under this law and instead states the applicant may submit a proposal for a specific concession and the city shall grant the concession requested unless it makes a written finding based on substantial evidence that the concession, among other things, would have a specific adverse impact (a s defined in Government Code section 65589.5(d)(2)) upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactor ily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low - and moderate-income households. PRACTICE NOTE: It is important to understand that the State’s Density Bonus Law is mandatory and that if a developer proposes a project that qualifies for a density bonus and/or 24 4.1.g Packet Pg. 244 concession(s), the city and reviewing bodies have little ability to otherwise mo dify the impacts of those bonuses or concession(s). PRACTICE NOTE : There still appear to be differing practices as to whether a developer’s inclusionary housing triggers the density bonuses or concessions under Govt. Code sections 65915 et seq. If there is still any ambiguity in your city’s ordinances, we recommend the city include inclusionary housing within density bonus calculations. See Latinos Unidos Del Valle De Napa y Solano v. County of Napa , (2013) 217 Cal. App. 4 th 1160 (density bonus is mandatory even if the project only includes affordable housing “involuntarily” to comply with a local ordinance). DUE PROCESS The Due Process clause of the Fourteenth Amendment is inextricably intertwined with land use law. Due process requires reasonable notice and an opportunity to be heard by an impartial decision maker for administrative proceedings that affect liberty or property interests. See Gov. Code section 65905(a); Fuchs v County of Los Angeles Civil Serv. Comm'n (1973) 34 CA3d 709. Due process issues can be fairly apparent, for example in the case of an issuance or revocation of a conditional use permit. One issue to be aware of is a due process claim arising out of the competing roles of the city attorney as advisor and advocate, for instan ce the attorney who advised the city on the underlying land use application also advises the body which acts as a later decision -maker in the administrative hearing on the application. See Nightlife Partners, Ltd. V. City of Beverly Hills (2003) 108 CA 4th 81 (city violated due process rights of the land use applicant when the lawyer advising the administrative hearing officer on appeal had also advised the City on the original denial of the permit being appealed); Quintero v City of Santa Ana (2003) 114 CA 4th 810 (due process violated where Board’s regular legal advisor appeared before the Board as an advocate, even where separate counsel to the Board was provided); see also Howitt v Superior Court (1992) 3 CA4th 1575 (county counsel's office must establish that its attorney who advised county's appeals board was completely segregated from attorney representing the department that terminated the employee, or else county counsel would be disqualified from advising county appeals board). This line of cases obviously presents some difficult logistical problems for small, in-house municipal legal offices, which require careful thought and planning, and often the retention of outside counsel, where attorneys work closely with staff, as well as acting as advisors to planning commissions and city councils. HISTORIC PRESERVATION For many communities such as the City of San Luis Obispo, historic preservation is critical. At the federal level, there is the National Historic Preservation Act that sets forth federal authority for federal historic preservations programs. California has the California Register of Historic Resources, Pub. Res. Code sections 5020 et seq ., which is an authoritative listing and guide for cities to implement their respective historic preservation ordinances. There are four different criteria for designation, which are as follows: 25 4.1.g Packet Pg. 245 1. The resource is associated with events that have made a significant contribution to the broad patters of local or regional history or the cultural heritage of California or the United States; 2. The resource is associated wi th the lives of persons important to local, California or national history; 3. The resource embodies the distinctive characteristics of a type, period, region or method of construction or represents the work of a master or possesses high artistic values; or 4. The resource has yielded, or has the potential to yield, information important to the prehistory or history of the local area, California or the nation. Note that the resource is not always a structure but can be something as simple as a sign, wall or trail . The typical effects of historic designation are protection of the resource from alternation, neglect or impact, the ability to obtain building code alternatives, and potentially property tax reduction under the Mills Act. CONCLUSION The world of land use law and regulation is comprehensive and the sheer volume of legal concepts, statutes governing land use decisions, and procedural requirements can be daunting. However, land use regulation is at the heart of some of the most significa nt decisions local governments make and represents the single most powerful tool that communities have to define, establish, and maintain their “sense of place.” If each land use decision can be evaluated starting with the constitutional foundations of the authority to regulate and the various statutes and processes can be viewed as tools to help answer the important questions and order important land use decisions, the process starts to seem less overwhelming. Fundamentally, this paper is presented from th e perspective that the law is supposed to make sense and that the objective of the law is good planning. It is our hope that the paper can be used as one of many tools to navigate the legal complexities through that lens. Attached to this paper is a brief “snapshot” of our “go -to” reference guides and websites, which we use in this important subject area. 26 4.1.g Packet Pg. 246 "Go-To" Reference Materials These are the books, websites and other reference materials we have sitting in our office or on our "favorites" tab on our computers. We thought it might be helpful to share with you the references we use, while keeping in mind that everyone works within a limited budget. Here is what our office looks like in regards to land use materials (in no particular order): Copy of our City's General Plan, Specific Plan, Zoning Regulations, Community Design Guidelines Remy, Thomas, Moose and Manley's Guide to CEQA Bass, Bogdan and Rivasplata's CEQA Deskbook Curtin's California Land Use and Planning Law California Municipal Law Handbook, CEB ACEC Planning and Zoning Michael Durkee's Map Act Navigator CA League of Cities': Proposition 218 Implementation Guide, Providing Conflict of Interest Advice, The People's Business, Open and Public IV Abbott, Detwiler, Jacobson, Sohagi and Steiner's Exactions and Impact Fees in California CALTrans's Standard Specifications Miller & Starr, California Real Estate (All of 'em) CEB California Civil Writ Practice CEB; California Land Use Practice --D CEB California Practice Under CEQA Link to the League of California Cities' City Attorney's e -Group Listsery -* Link to California Code through www.legalinfolegislature.ca.gov; Link to our City's Westlaw account. We use these reference materials on nearly a weekly basis and could not imagine operating without them. Of course, there are numerous other reference guides and materials that are tremendously helpful but the above list just happens to be the ones that we have accumulated over the years and try to keep current. 4.1.g Packet Pg. 247 4.1.g Packet Pg. 248 4.1.g Packet Pg. 249 From: neeners121 <neeners121@aol.com> Sent: Tuesday, June 23, 2020 3:59 PM To: Grace Lee Subject: Zoning for home in north Diamond Bar June 23 CAUTION: This message originated outside of our City of Diamond Bar network. Wow! Why would anyone allow just ONE home to be built in Diamond Bar that would absolutely negatively impact not hundreds, but thousands, of lives! Let me explain: 1. There are only 2 spectacular panoramas in Diamond Bar and this will effectively destroy the one in North Diamond Bar. Lost forever. It begins at the EXACT point of this property and if traveling by car south on DB Blvd it will no longer be captured. The house will block it. It has been there forever and for over 50 years our families, friends, and visitors to Diamond Bar have marveled at it. GO SEE! 2. MOST SERIOUSLY, the traffic coming south onto Diamond Bar Blvd from Mission in Pomona are traveling at approx 50 MPH. They are moving FROM, and down, a hill and for hundreds of teen drivers, and inexperienced drivers, they will not be prepared for the sudden stopping for large vehicles like UPS, POSTAL, FEDEX, CONSTRUCTION AND EQUIPMENT, FOOD DELIVERY, VISITORS AND MORE! For ONE house. This site is only about 100 feet from this hill. It will definitely create car accidents, injury, and even death. GO SEE! 3. I am a handicapped senior with serious medical and sleeping issues. Often I am only falling asleep at 4 or 5 AM. I assure you, north Diamond Bar, and especially the housing complex directly next door to this site, has thousands of handicapped seniors within a few hundred feet of this site. I cannot even wrap my mind around the NOISE AND DUST that this construction will create starting at what, 6 or 7 AM, lasting all day and going on for months and months??? For ONE house? It will produce severe medical issues for hundreds of Diamond Bar citizens. 4. This man knew when he purchased this property the only way he could develop it would be to negatively impact thousands of lives. For ONE house. Some neighbor. We have all paid dearly for our view homes and this man doesn't want his view, he wants our view! We will lose an abundance of profit, and well being, only to be replaced with a big, fat, ugly roof for a view! 5. This man scares us. His thinking is selfish, and greedy. We can only imagine he has other motives for this house. It will be so isolated, yet a perfect high end property with a view, he could make a lot of money with a high priced, desirable BIRTHING house. We are not city planners, just citizens of Diamond Bar who expect our city to protect us, and our interests. We are quite astonished that this zoning has been on your table for over 2 years when it should NEVER have even been considered in the first place. Entirely TOO many lives impacted for ONE HOUSE. Sincerely S. Mullins Sent from my Verizon, Samsung Galaxy smartphone 4.1.g Packet Pg. 250 4.1.g Packet Pg. 251 1 Kristina Santana From:Kristina Santana Sent:Wednesday, July 15, 2020 8:21 PM To:Kristina Santana Subject:RE: June 23 Planning Meeting From: neeners121 <neeners121@aol.com> Sent: Wednesday, July 15, 2020 4:51 PM To: Grace Lee <GLee@DiamondBarCA.Gov> Subject: June 23 Planning Meeting CAUTION: This message originated outside of our City of Diamond Bar network. This meeting was a fiasco and should be null and void for the following reasons: 1. I live 150 FEET north of this planned home and directly impacted. I called the day of the hearing to get info on speaking at this telephone meeting. I spoke to Natalie of City Hall and was given WRONG INFO!! She seemed confused and took awhile to get the information, apologizing for taking so long. My words "its o.k. take your time this information is IMPORTANT." She told me to be put on raise your hand to speak to hit 9* which I did. I GOT A RECORDING THAT SAID I WAS ON LISTENING MODE ONLY!!!! Can you even imagine the frustration and anger?? There was absolutely NOTHING I could do to fix it. I want my chance to speak which was taken from me. 2. The meeting was very difficult to hear properly and follow. I could not make out people's names, and had trouble understanding accents and information. I deem the telephone meetings are not sophisticated enough by today's technology. 2. Please read this twice and listen to the taped meeting: The info I heard was that five people who are impacted wrote letters that had not been read before this meeting! I am one of them. The Indian gentleman possibly named Mr. GARD initially said he did not want to vote yet until he read these letters!! Guess what? He changed his mind and voted anyway. Seriously, who answers for this error in judgment? I want to know, in writing, exactly how many OTHER members did not read these letters before voting 3. These errors are irresponsible. When you have city planning that can impact hundreds of lives for YEARS to come the people most impacted require more than 5 minutes to speak their mind ! I WANT MY FIVE MINUTES! These decisions impact us physically, emotionally, financially, spiritually and truly. That, and more. 4. To add to my previous concerns please note: The property owner hires gardeners to clear weeds from time to time. Noise travels UP and impacts everyone on our side of the street. Just these weed whackers create horrible noise for hours that will not allow a human to think, sleep, or relax. It is very serious disturbance of peace. Can you even imagine? The construction of this home, landscaping, and maintenance will destroy people's lives. 5. The traffic report may be incorrect and I am requesting a copy herein. Anyone with common sense can travel south on Diamond Bar Blvd at 50 mph from Mission Blvd to see the dangers of automobiles and trucks constantly stopping out of nowhere, when not expected. Rear end collisions CANNOT be avoided!! 4.1.h Packet Pg. 252 2 Please direct this note to the appropriate person or persons. I want in WRITING why my rights and concerns have and may be violated. Sorry will not apply here. But do note I am speaking on behalf of all citizens of Diamond Bar who will have their lives very badly impacted by this one home. Sincerely Susan Mullins Flintlock Rd Diamond Bar Sent from my Verizon, Samsung Galaxy smartphone 4.1.h Packet Pg. 253 Agenda #: 4.2 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: RESOLUTIONS LEVYING ASSESSMENTS ON LANDSCAPE ASSESSMENT DISTRICT NOS. 38, 39, AND 41 FOR FISCAL YEAR 2020-21. STRATEGIC GOAL: Open, Engaged & Responsive Government RECOMMENDATION: Receive staff report, open the Public Hearing, receive testimony, close the Public Hearing, discuss and take the following actions: A. Adopt Resolution No. 2020-32 (LLAD No. 38) to levy and collect assessments for Landscape Assessment District No. 38 for Fiscal Year 2020-21; B. Adopt Resolution No. 2020-33 (LLAD No. 39) to levy and collect assessments for Landscape Assessment District No. 39 for Fiscal Year 2020-21; and C. Adopt Resolution No. 2020-34 (LLAD No. 41) to levy and collect assessments for Landscape Assessment District No. 41 for Fiscal Year 2020-21. FINANCIAL SUMMARY: District No. 38 As shown on the attached Engineer’s Report, $276,330 of assessment generated by this District and $208,923 of the General Fund are proposed to pay for the operation and maintenance costs budgeted in Special Fund No. 138 (Special Fund Number 238 in the City’s new Finance System). District No. 39 As shown on the attached Engineer’s Report, the $294,764 of assessment generated by this District and $80,984 of General Funds are proposed to pay for the operation and maintenance costs budgeted in special fund No. 139 (Special Fund Number 239 in the 4.2 Packet Pg. 254 City’s new Finance System). District No. 41 As shown on the attached Engineer’s Report, $122,157 of assessment generated by this District and $142,824 of General Funds are proposed to pay for the operation and maintenance costs budgeted in special fund No. 141 (Special Fund Number 241 in the City’s new Finance System). BACKGROUND/DISCUSSION: As part of these assessment district updates, the City must undergo a three -step process. Throughout the entire process, all proceedings for the maintenance of improvements will be pursuant to the provisions of the Landscape and Lighting Act of 1972 of Part 2 Division 15 of the Streets and Highways Code of the State of California and applicable provisions of Proposition 218, Article 10 XII I D of the California Constitution. This is the final step of the process where the City Council conducts a public hearing on each of the District’s proposed annual assessment and considers the related resolutions confirming the levy of the assessments. District No. 38 The attached Engineer’s Report for the City’s Landscaping Assessment District Number 38, which is prepared pursuant to provisions of the Landscaping and Lighting Act of 1972 of Part 2 of Division 15 of the Streets and Highways Code of the State of California, includes authority for the report, estimated costs of improvements, a diagram for the District and the assessments. The estimated number of parcels within the District is 18,422 parcels. The amount assessed upon the lands within District Number 38 for Fiscal Year 2019 -20 was $15.00 per parcel. The amount to be assessed for Fiscal Year 2020 -21 is to remain at $15.00 per parcel. The assessments will be utilized towards the general maintenance of City’s medians and parkways. The proposed assessment was in effect prior to the effective date of Proposition 218 of July 1, 1997, and as such is exempt from the majority protest procedure of Article XIII D, Section 4, pursuant to reasons enumerated in Article D, Section 5. District No. 39 The attached Engineer’s Report for the City’s Landscaping Assessment District Number 39, which is prepared pursuant to provisions of the Landscaping and Lighting Act of 1972 of Part 2 of Division 15 of the Streets and Highways Code of the State of California, includes authority for the report, estimated costs of operation and maintenance, a diagram for the District and the assessmen ts. The estimated number of parcels within the District is 1,249 parcels. The amount assessed upon the lands within District Number 39 for Fiscal Year 2019 -20 was 4.2 Packet Pg. 255 $236.00 per parcel. The amount to be assessed for Fiscal Year 2020 -21 is proposed to remain at $236.00 per parcel. The assessments will be utilized towards the general maintenance of slopes, open space areas and the five (5) mini parks within District 39. The proposed assessment was in effect prior to the effective date of Proposition 218 of July 1, 1997, and as such is exempt from the majority protest procedure of Article XIII D, Section 4, pursuant to reasons enumerated in Article D, Section 5. District No. 41 The attached Engineer’s Report for the City’s Landscaping Assessment District Number 41, which is prepared pursuant to provisions of the Landscaping and Lighting Act of 1972 of Part 2 of Division 15 of the Streets and Highways Code of the State of California, includes authority for the report, estimated costs of improvements, a diagram for the District and the assessments. The estimated number of parcels within the District is 554 parcels. The amount assessed upon the lands within District Number 41 for Fiscal Year 2019 -20 was $220.50 per parcel. The amount to be assessed for Fiscal Year 2020-21 is to remain at $220.50 per parcel. The assessments will be utilized towards the general maintenance of mini parks, slopes, and open space areas within District 41. The proposed assessment was in effect prior to the effective date of Proposition 218 of July 1, 1997, and as such is exempt from the majority protest procedure of Article XIII D, Section 4, pursuant to reasons enumerated in Article D, Section 5. LEGAL REVIEW: The City Attorney has reviewed and approved the Resolutions. PREPARED BY: 4.2 Packet Pg. 256 REVIEWED BY: Attachments: 1. 4.2.a LLAD 38 - Resolution 2020-32 2. 4.2.b LLAD 39 - Resolution 2020-33 3. 4.2.c LLAD 41 - Resolution 2020-34 4. 4.2.d LLAD 38 - Engineer's Report 2020-21 5. 4.2.e LLAD 39 - Engineer's Report 2020-21 6. 4.2.f LLAD 41 - Engineer's Report 2020-21 4.2 Packet Pg. 257 RESOLUTION NO. 2020-32 A RESOLUTION LEVYING AN ASSESSMENT ON CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 38 FOR THE FISCAL YEAR 2020-21. RECITALS WHEREAS, by Resolution No. 2020-27, the City Council approved a report of the Engineer of Work (the “Report”) related to City of Diamond Bar Assessment District No. 38 (“District”) prepared pursuant to Article XIII of the California Constitution, and the Landscape and Lighting Act of 1972 (the “Act”), Part 2 of Division 15 of the California Streets and Highways Code (commencing with Section 22500 thereof), which described the improvements thereon, and gave notice of and fixed the time and place of the hearing on the question of assessment thereon for fiscal year 2020-21. A diagram of the area encompassed by the District is attached hereto as Exhibit "A-1"; WHEREAS, the Report is on file with the City Clerk of the City of Diamond Bar; WHEREAS, said hearing was duly and properly noticed, commenced telephonically on July 21, 2020, and was concluded prior to the adoption of this Resolution; and WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Diamond Bar does hereby: Section 1. The Recitals of this Resolution are in all respects true and correct. Section 2. The City Council hereby expressly overrules any and all protests filed objecting to the proposed improvements specified herein or the assessment levied therefore. Section 3. Based upon its review of the Report and other reports and information, the City Council hereby finds that (i) the land within the District will be benefitted by the improvements specified in the Report, (ii) the District includes all of the lands so benefitted, and (iii) the net amount to be assessed upon the lands within the District for the 2020-21 fiscal year is apportioned by a formula and method which fairly distributes the net amount among all assessable lots or parcels in proportion to the estimated benefits to be received by each such lot or parcel from the improvements. Section 4. The improvements specified in the Report are hereby ordered to be completed. 4.2.a Packet Pg. 258 Resolution No. 2020-32 2 Section 5. The assessment diagram contained in the Report and the assessment of $15.00 for each assessable lot located within the District are hereby adopted and confirmed and said assessment hereby is levied for the 2020-21 fiscal year. Section 6. The assessment is in compliance with the provisions of the Act, and the City Council has complied with all laws pertaining to the levy of an annual assessment pursuant to the Act. The assessment is levied for the purpose of paying the costs and expenses of the improvements described in the Report for fiscal year 2020-21. Section 7. The City Council hereby certifies that the assessments to be placed on the 2020-21 property tax bills meet the requirements of Proposition 218 that added Articles XIIIC and XIIID to the California Constitution. Section 8. The assessments are levied without regard to property valuation. Section 9. The City Treasurer shall deposit all moneys representing assessments collected by the County to the credit of a special fund for use in City of Diamond Bar Assessment District No. 38. Section 10. The City Clerk is hereby authorized and directed to file the diagram and assessment with the County Auditor, together with a certified copy of this Resolution upon its adoption. Section 11. A certified copy of the assessment and diagram shall be filed in the office of the City Clerk and open for public inspection. Section 12. The City Clerk shall certify to the adoption of this Resolution. PASSED, ADOPTED AND APPROVED this 21st day of July 2020. ____________________________ Steve Tye, Mayor ATTEST: I, Kristina Santana, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Resolution was passed, approved and adopted at the regular meeting of the City Council of the City of Diamond Bar held on the 21st day of July 2020, by the following roll call vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ___________________________ Kristina Santana, City Clerk 4.2.a Packet Pg. 259 Resolution No. 2020-32 3 Exhibit “A-1” 4.2.a Packet Pg. 260 RESOLUTION NO. 2020-33 A RESOLUTION LEVYING AN ASSESSMENT ON CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 FOR THE FISCAL YEAR 2020-21. RECITALS WHEREAS, by Resolution No. 2020-28, the City Council approved a report of the Engineer of Work (the “Report”) related to City of Diamond Bar Assessment District No. 39 (“District”) prepared pursuant to Article XIII of the California Constitution, and the Landscape and Lighting Act of 1972 (the “Act”), Part 2 of Division 15 of the California Streets and Highways Code (commencing with Section 22500 thereof), which described the improvements thereon, and gave notice of and fixed the time and place of the hearing on the question of assessment thereon for fiscal year 2020-21. A diagram of the area encompassed by the District is attached hereto as Exhibit "A-2"; WHEREAS, the Report is on file with the City Clerk of the City of Diamond Bar; WHEREAS, said hearing was duly and properly noticed, commenced telephonically on July 21, 2020, and was concluded prior to the adoption of this Resolution; and WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Diamond Bar does hereby: Section 1. The Recitals of this Resolution are in all respects true and correct. Section 2. The City Council hereby expressly overrules any and all protests filed objecting to the proposed improvements specified herein or the assessment levied, therefore. Section 3. Based upon its review of the Report and other reports and information, the City Council hereby finds that (i) the land within the District will be benefitted by the improvements specified in the Report, (ii) the District includes all of the lands so benefitted, and (iii) the net amount to be assessed upon the lands within the District for the 2020-21 fiscal year is apportioned by a formula and method which fairly distributes the net amount among all assessable lots or parcels in proportion to the estimated benefits to be received by each such lot or parcel from the improvements. Section 4. The improvements specified in the Report are hereby ordered to be completed. 4.2.b Packet Pg. 261 Resolution No. 2020-33 2 Section 5. The assessment diagram contained in the Report and the assessment of $236.00 for each assessable lot located within the District are hereby adopted and confirmed and said assessment hereby is levied for the 2020-21 fiscal year. Section 6. The assessment is in compliance with the provisions of the Act, and the City Council has complied with all laws pertaining to the levy of an annual assessment pursuant to the Act. The assessment is levied for the purpose of paying the costs and expenses of the improvements described in the Report for fiscal year 2020-21. Section 7. The City Council hereby certifies that the assessments to be placed on the 2020-21 property tax bills meet the requirements of Proposition 218 that added Articles XIIIC and XIIID to the California Constitution. Section 8. The assessments are levied without regard to property valuation. Section 9. The City Treasurer shall deposit all moneys representing assessments collected by the County to the credit of a special fund for use in City of Diamond Bar Assessment District No. 39. Section 10. The City Clerk is hereby authorized and directed to file the diagram and assessment with the County Auditor, together with a certified copy of this Resolution upon its adoption. Section 11. A certified copy of the assessment and diagram shall be filed in the office of the City Clerk and open for public inspection. Section 12. The City Clerk shall certify to the adoption of this Resolution. PASSED, ADOPTED AND APPROVED this 21st day of July 2020. _____ Steve Tye, Mayor ATTEST: I, Kristina Santana, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Resolution was passed, approved and adopted at the regular meeting of the City Council of the City of Diamond Bar held on the 21st day of July 2020, by the following roll call vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ___________________________ Kristina Santana, City Clerk 4.2.b Packet Pg. 262 Resolution No. 2020-33 3 Exhibit A-2 4.2.b Packet Pg. 263 RESOLUTION NO. 2020-34 A RESOLUTION LEVYING AN ASSESSMENT ON CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 FOR THE FISCAL YEAR 2020-21. RECITALS WHEREAS, by Resolution No. 2020-29, the City Council approved a report of the Engineer of Work (the “Report”) related to City of Diamond Bar Assessment District No. 41 (“District”) prepared pursuant to Article XIII of the California Constitution, and the Landscape and Lighting Act of 1972 (the “Act”), Part 2 of Division 15 of the California Streets and Highways Code (commencing with Section 22500 thereof), which describ ed the improvements thereon, and gave notice of and fixed the time and place of the hearing on the question of assessment thereon for fiscal year 2020-21. A diagram of the area encompassed by the District is attached hereto as Exhibit "A-3"; WHEREAS, the Report is on file with the City Clerk of the City of Diamond Bar; WHEREAS, said hearing was duly and properly noticed, commenced telephonically on July 21, 2020, and was concluded prior to the adoption of this Resolution; and WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Diamond Bar does hereby: Section 1. The Recitals of this Resolution, are in all respects true and correct. Section 2. The City Council hereby expressly overrules any and all protests filed objecting to the proposed improvements specified herein or the assessment levied, therefore. Section 3. Based upon its review of the Report, and other reports and information, the City Council hereby finds that (i) the land within the District will be benefitted by the improvements specified in the Report, (ii) the District includes all of the lands so benefitted, and (iii) the net amount to be assessed upon the lands within the District for the 2020-21 fiscal year is apportioned by a formula and method which fairly distributes the net amount among all assessable lots or parcels in proportion to the estimated benefits to be received by each such lot or parcel from the improvements. Section 4. The improvements specified in the Report are hereby ordered to be completed. 4.2.c Packet Pg. 264 Resolution No. 2020-34 2 Section 5. The assessment diagram contained in the Report and the assessment of $220.50 for each assessable lot located within said District are hereby adopted and confirmed and said assessment hereby is levied for the 2020-21 fiscal year. Section 6. The assessment is in compliance with the provisions of the Act, and the City Council has complied with all laws pertaining to the levy of an annual assessment pursuant to the Act. The assessment is levied for the purpose of paying the costs and expenses of the improvements described in the Report for fiscal year 2020-21. Section 7. The City Council hereby certifies that the assessments to be placed on the 2020-21 property tax bills meet the requirements of Proposition 218 that added Articles XIIIC and XIIID to the California Constitution. Section 8. The assessments are levied without regard to property valuation. Section 9. The City Treasurer shall deposit all moneys representing assessments collected by the County to the credit of a special fund for u se in City of Diamond Bar Assessment District No. 41. Section 10. The City Clerk is hereby authorized and directed to file the diagram and assessment with the County Auditor, together with a certified copy of this Resolution upon its adoption. Section 11. A certified copy of the assessment and diagram shall be filed in the office of the City Clerk and open for public inspection. Section 12. The City Clerk shall certify to the adoption of this Resolution. PASSED, ADOPTED AND APPROVED this 21st day of July 2020. ____ Steve Tye, Mayor ATTEST: I, Kristina Santana, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Resolution was passed, approved and adopted at the regular meeting of the City Council of the City of Diamond Bar held on the 21st day of July 2020, by the following roll call vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: __________________________ Kristina Santana, City Clerk 4.2.c Packet Pg. 265 Resolution No. 2020-34 3 Exhibit A-3 4.2.c Packet Pg. 266 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT FISCAL YEAR 2020-21 JUNE 2020 PURSUANT TO THE LANDSCAPING AND LIGHTING ACT OF 1972, GOVERNMENT CODE AND ARTICLE XIIID OF THE CALIFORNIA CONSTITUTION ENGINEER OF WORK: SCIConsultingGroup 4745 MANGELS BOULEVARD FAIRFIELD, CALIFORNIA 94534 PHONE 707.430.4300 FAX 707.430.4319 WWW.SCI-CG.COM 4.2.d Packet Pg. 267 (THIS PAGE INTENTIONALLY LEFT BLANK) 4.2.d Packet Pg. 268 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE i CITY OF DIAMOND BAR CITY COUNCIL Steve Tye, Mayor Nancy Lyons, Mayor Pro Tem Andrew Chou, Councilmember Ruth Low, Councilmember Jennifer “Fred” Mahlke, Councilmember CITY MANAGER Dan Fox PUBLIC WORKS DIRECTOR / CITY ENGINEER David Liu CITY ATTORNEY David DeBerry ENGINEER OF WORK SCI Consulting Group 4.2.d Packet Pg. 269 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE ii (THIS PAGE INTENTIONALLY LEFT BLANK) 4.2.d Packet Pg. 270 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE iii TABLE OF CONTENTS INTRODUCTION....................................................................................................................... 5 OVERVIEW ...................................................................................................................... 5 ENGINEER’S REPORT AND CONTINUATION OF ASSESSMENTS .............................................. 5 LEGISLATIVE ANALYSIS .................................................................................................... 6 PLANS & SPECIFICATIONS ...................................................................................................... 9 FISCAL YEAR 2020-21 ESTIMATE OF COST AND BUDGET ....................................................... 11 BUDGET FOR FISCAL YEAR 2020-21 ............................................................................... 11 METHOD OF ASSESSMENT APPORTIONMENT .......................................................................... 12 METHOD OF APPORTIONMENT ........................................................................................ 12 DISCUSSION OF BENEFIT ................................................................................................ 12 SPECIAL BENEFIT .......................................................................................................... 13 GENERAL VERSUS SPECIAL BENEFIT .............................................................................. 15 BENEFIT FINDING ........................................................................................................... 16 METHOD OF APPORTIONMENT ........................................................................................ 19 ANNUAL ASSESSMENT CALCULATION .............................................................................. 19 DURATION OF ASSESSMENT ........................................................................................... 20 APPEALS OF ASSESSMENTS LEVIED TO PROPERTY........................................................... 20 ASSESSMENT FUNDS MUST BE EXPENDED WITHIN THE DISTRICT AREA ............................. 20 ASSESSMENT ...................................................................................................................... 21 ASSESSMENT DIAGRAM ........................................................................................................ 23 ASSESSMENT ROLL ............................................................................................................. 25 4.2.d Packet Pg. 271 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE iv LIST OF TABLES TABLE 1: FY 2020-21 ESTIMATE OF COSTS ........................................................................... 11 TABLE 2: FY 2020-21 SUMMARY COST ESTIMATE .................................................................. 21 4.2.d Packet Pg. 272 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 INTRODUCTION OVERVIEW The City of Diamond Bar (the “City”) services and maintains perimeter and median landscaping, and other improvements (“Improvements”) to various parts of the City. In order to fund the maintenance and operation (“Services”) of these projects and improvements, Landscaping Assessment District No. 38 (“District”) was formed in 1984 by the County of Los Angeles prior to the incorporation of the City of Diamond Bar. Upon incorporation in 1989, the City assumed jurisdiction over the District. This Engineer’s Report ("Report") was prepared to establish the budget for the Improvements (as described below) that will be funded by the 2020-21 assessments and other revenue, and to determine the general and special benefits received from the Improvements by property within the District and the method of assessment apportionment to lots and parcels. This Report and the assessments have been made pursuant to the Landscaping and Lighting Act of 1972, Part 2 of Div ision 15 of the California Streets and Highways Code (the "Act") and Article XIIID of the California Constitution (the “Article”). ENGINEER’S REPORT AND CONTINUATION OF ASSESSMENTS The assessments have been continued for over 30 years. In each subsequent year for which the assessments will be continued, the Diamond Bar City Council (the “Council”) must direct the preparation of an Engineer’s Report, budgets, and proposed assessments for the upcoming fiscal year. After the report is completed, the City C ouncil may preliminarily approve the Engineer’s Report and the continued assessments and establish the date for a public hearing on the continuation of the assessments. Accordingly, this Engineer’s Report (the “Report”) was prepared pursuant to the direction of the City Council. As required by the Act, this Report includes plans and specifications, a diagram or map of the District, the benefits received by property from the Improvements within the District, and the method of assessment apportionment to lots and parcels within the District. If the Council approves this Engineer’s Report and the continuation of the Assessments by resolution, a notice of public hearing must be published in a local newspaper at least 10 days prior to the date of the public hearing. The resolution preliminarily approving the Engineer’s Report and establishing the date for a public hearing is typically used for this notice. Following the minimum 10-day time period after publishing the notice, a public hearing is held for the purpose of allowing public testimony about the proposed continuation of the Assessments. This hearing is currently scheduled for July 21, 2020. At this hearing, the Council will consider approval of a resolution confirming the continuation of the Assessments for fiscal year 2020-21. If so confirmed and approved, the Assessments would be submitted to the Los Angeles County Auditor/Controller for inclusion on the property tax rolls for fiscal year 2020-21. 4.2.d Packet Pg. 273 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 6 Beginning in 2015, SCI Consulting Group became the Assessment Engineer for the District. To maintain an accurate reference and legally defensible record of the Dist rict, pertinent language used in previous engineer’s reports has been retained herein and is cited in italics as appropriate. LEGISLATIVE ANALYSIS Proposition 218 The Right to Vote on Taxes Act was approved by the voters of California on November 6, 1996 and is now Article XIIIC and XIIID of the California Constitution. Proposition 218 provides for benefit assessments to be levied to fund the cost of providing services and improvements, as well as maintenance and operation expenses to a public improvement which benefits the assessed property. SILICON VALLEY TAXPAYERS ASSOCIATION, INC. V SANTA CLARA COUNTY OPEN SPACE AUTHORITY (2008) 44 CAL. 4TH 431 In July of 2008, the California Supreme Court issued its ruling on the Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority (“SVTA”). This ruling is significant in that the Court clarified how Proposition 218 made changes to the determination of special benefit. The Court also found that: ➢ Benefit assessments are for special, not general, benefit ➢ The services and/or improvements funded by assessments must be clearly defined ➢ Special benefits are directly received by and provide a direct advantage to property in the Improvement District ➢ The assessment paid by property should be proportional to the special benefits it receives from the Improvements This Engineer’s Report and the process used to establish the continuation of the assessments for fiscal year 2020-21 are consistent with the SVTA decision and with the requirements of Article XIIIC and XIIID of the California Constitution based on the following factors: 1. The District is drawn to include the entire City; although only parcels deriving special benefits are included in the assessment rolls. Thus, zones of benefit are not required, and the assessment revenue derived from real property in the District is expended only on the Improvements in the District. 2. The Improvements which are constructed and maintained with assessment proceeds in the District are located in close proximity to the real property subject to the assessment. The Improvements provide landscaping and other services to the residents of such assessed property. The proximity of the Improvements to the assessed parcels provides a special benefit to the parcel being assessed pursuant to the factors outlined by the Supreme Court in that decision. 4.2.d Packet Pg. 274 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 7 3. Due to their proximity to the assessed parcels, the Improvements financed with assessment revenues in the District benefit the properties in that District in a manner different in kind from the benefit that other parcels of real property in the City derive from such Improvements, and the benefits conferred on such property in the District are more extensive than a general increase in property values. 4. The assessments paid in the District are proportional to the special benefit that each parcel within that Assessment District receives from the Improvements because: a. The specific landscaping Improvements and maintenance and utility costs thereof in the District are specified in this Report; and b. Such Improvement and maintenance costs in the District are allocated among different types of property located within the District, and equally among those properties which have similar characteristics, such as single-family residential parcels, multi-family residential parcels, commercial parcels, industrial parcels, etc. DAHMS V. DOWNTOWN POMONA PROPERTY (2009) 174 CAL. APP. 4TH 708 In Dahms v. Downtown Pomona Property (“Dahms”) the Court upheld an assessment that was 100% special benefit (i.e. 0% general benefit) on the rationale that the services and improvements funded by the assessments were directly provided to property in the assessment district. The Court also upheld discounts and exemptions from the assessment for certain properties. BONANDER V. TOWN OF TIBURON (2009) 180 CAL. APP. 4TH 103 Bonander v. Town of Tiburon (“Bonander”), the 1st District Court of Appeal overturned a benefit assessment approved by property owners to pay for placing overhead utility lines underground in an area of the Town of Tiburon. The Court invalidated the assessments primarily on the grounds that the assessments had been apportioned to assessed property based on the costs within sub-areas of the assessment district instead of the overall cost of the improvements and the overall proportional special benefits. BEUTZ V. COUNTY OF RIVERSIDE (2010) 184 CAL. APP. 4TH 1516 Steven Beutz v. County of Riverside (“Beutz”) the Court overturned an assessment for park maintenance in Wildomar, California, primarily because the general benefits associated with improvements and services were not explicitly calculated, quantified and separated from the special benefits. GOLDEN HILL NEIGHBORHOOD ASSOCIATION V. CITY OF SAN DIEGO (2011) 199 CAL. APP. 4TH 416 On September 22, 2011, the San Diego Court of Appeal issued a decision on the Golden Hill Neighborhood Association v. City of San Diego appeal. This decision overturned an assessment for street and landscaping maintenance in the Greater Golden Hill neighborhood of San Diego, California. The court described two primary reasons for its decision. First, like in Beutz, the court found the general benefits associated with services 4.2.d Packet Pg. 275 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 8 were not explicitly calculated, quantified and separated from the special benefit s. Second, the court found that the City had failed to record the basis for the assessment on its own parcels. COMPLIANCE WITH CURRENT LAW This Engineer’s Report is consistent with the SVTA decision and with the requirements of Article XIIIC and XIIID of the California Constitution because the Improvements to be funded are clearly defined; the benefiting property in the District enjoys close and unique proximity, access and views to the Improvements; the Improvements serve as an extension of usable land area for benefiting properties in the District and such special benefits provide a direct advantage to property in the District that is not enjoyed by the public at large or other property. This Engineer’s Report is consistent with Beutz, Dahms and Greater Golden Hill because the Improvements will directly benefit property in the District and the general benefits have been explicitly calculated and quantified and excluded from the Assessmen ts. The Engineer’s Report is consistent with Bonander because the Assessments have been apportioned based on the overall cost of the Improvements and Services proportional special benefit to each property, rather than the proportional cost to the District to provide the Improvements to specific properties. 4.2.d Packet Pg. 276 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 9 PLANS & SPECIFICATIONS The City maintains landscaping and other improvements in locations within the District’s boundaries. The work and improvements to be undertaken by Landscaping Assessment District No. 38, (“District”), and the cost thereof paid from the levy of the annual Assessment provide special benefit to Assessor Parcels within the District as defined in the Method of Assessment herein. In addition to the definitions provided by the Landscaping and Lighting Act of 1972 (the “Act”), the work and improvements are generally described as follows: MEDIANS The landscaped islands to be maintained by the District are located as follows: ➢ Diamond Bar Blvd ➢ Grand Ave ➢ Golden Springs Dr – 57 freeway overcrossing to West City Limits ➢ Golden Prados Dr – Golden Springs Dr to Hopi St ➢ Tin Dr – Great Bend Dr to Diamond Bar Blvd ➢ Lemon Ave – Lycoming St to Golden Springs Dr ➢ Sunset Crossing Rd – 57 freeway off-ramp to Prospectors Rd ➢ Prospectors Rd – at Dry Creek Rd; at Palo Cedro Dr; and at Beaverhead Dr ➢ Pathfinder Rd at Brea Canyon Rd (east of 57 freeway) PARKWAYS The landscaped parkways to be maintained by the District are located as follows: ➢ Grand Ave – Summit Ridge to Diamond Bar Blvd, north side ➢ Temple Ave – Diamond Bar Blvd to Golden Springs Dr, south side ➢ Golden Springs Dr – Ballena Dr to End of cul-de-sac ➢ Golden Springs Dr – El Encino Dr to Platina Dr ➢ Golden Springs Dr – Rancheria Rd to end of cul-de-sac ➢ Diamond Bar Blvd – Mountain Laurel Way to Maple Hill Rd ➢ Pathfinder Rd – Evergreen Springs Dr to end of cul-de-sac ➢ Brea Canyon Rd – at Gerndal St ➢ Golden Springs Dr – at Adel Ave ➢ Brea Canyon Rd – South of Pathfinder Rd to southerly City Limits, both sides ➢ Sunset Crossing Rd – Big Falls Dr to Chapparal Dr TURF AREAS The landscaped turf areas to be maintained by the District are located as follows: ➢ Diamond Bar Blvd – at Gold Rush Dr ➢ Grand Ave (east side) – from south of Rolling Knoll Dr to driveway at the Diamond Bar Center 4.2.d Packet Pg. 277 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 10 Installation, maintenance and servicing of Improvements, may include, but are not limited to, turf and play areas, landscaping, ground cover, shrubs and trees, irrigation systems, lighting, fencing, entry monuments, graffiti removal and repainting, and labor, materials, supplies, utilities and equipment, as applicable, at each of the locations owned, operated or maintained by the District. As applied herein, “Installation” means the construction of Improvements, including, but not limited to, land preparation (such as grading, leveling, cutting and filling), sod, landscaping, irrigation systems, walkways and drainage and lights. “Maintenance” means the furnishing of services and materials for the ordinary and usual maintenance, operation and servicing of any improvement, including repair, removal or replacement of all or any part of any improvement; providing for the life, growth, health, and beauty of landscaping, including cultivation, irrigation, trimming, spraying, fertilizing, or treating for disease or injury; the removal of trimmings, rubbish, debris, and other solid waste, and the cleaning, sandblasting, and painting of walls and other improvements to remove or cover graffiti. “Servicing” means the furnishing of electric current, or energy, gas or other illuminating agent for any public lighting facilities or for the lighting or operation of any other improvements; or water for the irrigation of any landscaping, the operation of any fountains, or the maintenance of any other improvements. Incidental expenses include all of the following: (a) The costs of preparation of the report, including plans, specifications, estimates, diagram, and assessment; (b) the costs of printing, advertising, and the giving of published, posted, and mailed notices; (c) compensation payable to the County for collection of assessments; (d) compensation of any engineer or attorney employed to render services in proceedings pursuant to this part; (e) any other expenses incidental to the construction, installation, or maintenance and servicing of the Improvements; (f) any expenses incidental to the issuance of bonds or notes pursuant to Streets & Highways Code Section 22662.5; and (g) costs associated with any elections held for the approval of a new or increased assessment (Streets & Highways Code §22526). Modifications to the District structure could include, but are not limited to, substantial changes or expansion of the Improvements provided, substantia l changes in the service provided, modifications or restructuring of the District including annexation or detachment of specific parcels, revisions in the method of apportionment, or proposed new or increased assessments. The assessment proceeds will be exclusively used for Improvements within the District plus incidental expenses. 4.2.d Packet Pg. 278 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 11 FISCAL YEAR 2020-21 ESTIMATE OF COST AND BUDGET BUDGET FOR FISCAL YEAR 2020-21 The 1972 Act provides that the total costs for providing the maintenance and servicing of the District Improvements and facilities can be recovered in the assessment spread including incidental expenses. The latter can include engineering fees, legal fees, printing, mailing, postage, publishing and all other costs identified with the District proceedings. An estimate of District costs for fiscal year 2020-21 for the maintenance and servicing of the Improvements is provided below. TABLE 1: FY 2020-21 ESTIMATE OF COSTS A. The Act requires that proceeds from the assessments must be deposited into a special fund that has been set up for the revenues and expenditures of the District. Moreover, funds raised by the assessment shall be used only for the purposes stated within this Report. Any balance remaining at the end of the Fiscal Year, June 30, must be carried over to the next Fiscal Year. The District may also establish a reserve fund for contingencies and special projects as well as a capital improvement fund for accumulating funds for larger capital improvement projects or capital renovation needs. Any remaining balance would either be placed in the reserve fund or would be used to reduce future years' assessments. Expenditure Item Salaries & Benefits (subsidized by General Fund)41,673$ Operating Expenses Advertising 5,000$ Utilities 150,000$ Maintenance of Grounds/Buildings 36,897$ Professional Services 5,640$ Contract Services Trails Maintenance 183,693$ Trees Maintenance 62,350$ Estimated Expenditures 485,253$ Revenue Item Direct Benefit Assessments 276,330$ General Fund Contribution 208,923$ Estimated Revenues 485,253$ Budget Allocation to Parcels Total Assessment BudgetA 276,330$ Total Assessable Parcels 18422 Assessment per Parcel 15$ 4.2.d Packet Pg. 279 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 12 METHOD OF ASSESSMENT APPORTIONMENT METHOD OF APPORTIONMENT This section of the Engineer's Report explains the benefits to be derived from the Improvements and the methodology used to apportion the total assessment to properties within the District. The District consists of certain assessor parcels within the boun daries as defined by the Assessment Diagram referenced in this report and the parcels identified by the Assessor Parcel Numbers listed with the levy roll. The parcel list includes all privately and publicly owned parcels as shown. The method used for apportioning the Assessment is based upon the relative special benefits to be derived by the properties in the District over and above general benefits conferred on real property or to the public at large. The Assessment is apportioned to lots and parcels in proportion to the relative special benefit from the Improvements. The apportionment of special benefit is a two -step process: the first step is to identify the types of special benefit arising from the Improvements and the second step is to allocate the Assessments to property based on the estimated relative special benefit for each type of property. DISCUSSION OF BENEFIT In summary, the Assessments can only be levied based on the special benefit to property. This benefit is received by property over and above any general benefits. With reference to the requirements for assessments, Section 22573 of the Landscaping and Lighting Act of 1972 states: "The net amount to be assessed upon lands within an assessment district may be apportioned by any formula or method which fairly distributes the net amount among all assessable lots or parcels in proportion to the estimated benefits to be received by each such lot or parcel from the improvements." Proposition 218, as codified in Article XIIID of the California Constitution, has confirmed that assessments must be based on the special benefit to property and that the value of the special benefits must exceed the cost of the assessment: "No assessment shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel." The following benefit categories summarize the types of special benefit to residential, commercial, industrial and other lots and parcels resulting from the Improvements to be provided with the assessment proceeds. These types of special benefit are summarized as follows: 4.2.d Packet Pg. 280 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 13 A. Proximity to Improved Landscaped Areas and Other Public Improvements within the District. B. Access to Improved landscaped areas and Other Public Improvements within the District. C. Improved Views within the District. D. Extension of a property’s outdoor areas and green spaces for properties within close proximity to the Improvements. In this case, the recent SVTA v. SCCOSA decision provides enhanced clarity to the definitions of special benefits to properties from similar improvements in three distinct areas: ➢ Proximity ➢ Expanded or improved access ➢ Views The SVTA v. SCCOSA decision also clarifies that a special benefit is a service or improvement that provides a direct advantage to a parcel and that indirect or derivative advantages resulting from the overall public benefits from a service or improvement are general benefits. The SVTA v. SCCOSA decision also provides specif ic guidance that park improvements are a direct advantage and special benefit to property that is proximate to a park that is improved by an assessment: The characterization of a benefit may depend on whether the parcel receives a direct advantage from the improvement (e.g. proximity to a park) or receives an indirect, derivative advantage resulting from the overall public benefits of the improvement (e.g. general enhancement of the district’s property values). Proximity, improved access and views, in addition to the other special benefits listed herein further strengthen the basis of these assessments. Moreover, the Dahms decision further clarified that certain services and improvements funded by assessments, that are over and above what otherwise would be provided and that other property in general and the public do not share or receive are 100% special benefit. The assessment-funded services upheld by Dahms included streetscape maintenance and security services. SPECIAL BENEFIT The District was formed by a different engineer of record. From the original Engineer’s Report, the primary special benefits on landscaping are as set forth below: 1. Beautification of the streets which are used by all of the residents in Diamond Bar. 2. A sense of community pride resulting from well-maintained green spaces. 4.2.d Packet Pg. 281 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 14 3. The enhancement of the value of property which results from the foregoing benefits.1 In addition, SCI assessment engineers have identified the following special benefits: PROXIMITY TO IMPROVED LANDSCAPED AREAS WITHIN THE DISTRICT Only the specific properties within close proximity to the Improvements are included in the District. The District has been narrowly drawn to include the properties that receive special benefits from the Improvements. Therefore, property in the District enjoys unique and valuable proximity and access to the Improvements that the public at large and property outside the District do not share. In absence of the Assessments, the Improvements would not be provided , and the public improvements funded in the District would be degraded due to insufficient funding for maintenance, upkeep and repair. Therefore, the Assessments provide Improvements that are over and above what otherwise would be provided. Improvements that are over and above what otherwise would be provided do not by themselves translate into special benefits but when combined with the unique proximity and access enjoyed by parcels in the District, they provide a direct advantage and special benefit to property in the District. ACCESS TO IMPROVED LANDSCAPED AREAS WITHIN THE DISTRICT Since the parcels in the District are nearly the only parcels that enjoy close access to the Improvements, they directly benefit from the unique close access to improved landscaping areas and other public improvements that are provided by the Assessments. This is a direct advantage and special benefit to property in the District. IMPROVED VIEWS WITHIN THE ASSESSMENT DISTRICTS The City, by maintaining permanent public improvements funded by the Assessments in the District, provides improved views to properties in the District. The properties in the District enjoy close and unique proximity, access and views of the specific Improvements funded in the District; therefore, the improved and protected views provided by the Assessments are another direct and tangible advantage that is uniquely conferred upon property in the District. EXTENSION OF A PROPERTY’S OUTDOOR AREAS AND GREEN SPACES FOR PROPERTIES WITHIN CLOSE PROXIMITY TO THE IMPROVEMENTS In large part because it is cost prohibitive to provide large open land areas on property in the District, the residential, commercial and other benefiting properties in the District do not have large outdoor areas and green spaces. The Improvements within the District provide additional outdoor areas that serve as an effective extension of the land area for proximate properties because the Improvements are uniquely proximate and accessible to property in close proximity to the Improvements. The Improvements, therefore, provide an important, 1 From the Engineer’s Report, Update of Assessment District No. 38, Fiscal Year 2014-15, City of Diamond Bar, dated June 3, 2014 4.2.d Packet Pg. 282 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 15 valuable and desirable extension of usable land area for the direct advantage and special benefit of properties in the District because such properties have uniquely good and close proximity to the Improvements. GENERAL VERSUS SPECIAL BENEFIT Article XIIIC of the California Constitution requires any local agency proposing to increase or impose a benefit assessment to “separate the general benefits from the special benefits conferred on a parcel.” The rationale for separating special and general benefits is to ensure that property owners subject to the benefit assessment are not paying for general benefits. An assessment can fund special benefits but cannot fund general benefits. Accordingly, a separate estimate of the special and general benefit is given in this section. In other words: There is no widely-accepted or statutory formula for general benefit. General benefits are benefits from improvements or services that are not special in nature, are not “particular and distinct” and are not “over and above” benefits received by other properties. SVTA vs. SCCOSA provides some clarification by indicating that general benefits provide “an indirect, derivative advantage” and are not necessarily proximate to the improvements. In this Report, the general benefit is liberally estimated and described, and then budgeted so that it is funded by sources other than the Assessment. The starting point for evaluating general and special benefits is the current, baseline level of service. The Assessment will fund Improvements “over and above” this general, baseline level and the general benefits estimated in this section are over and above the baseline. A formula to estimate the general benefit is listed below: General Benefit = Benefit to Real Property Outside the Assessment District + Benefit to Real Property Inside the Assessment District that is Indirect and Derivative + Benefit to the Public at Large Special benefit, on the other hand, is defined in the state constitution as “a particular and distinct benefit over and above general benefits conferred on real property located in the district or to the public at large.” The SVTA v. SCCOSA decision indicates that a special benefit is conferred to a property if it “receives a direct advantage from the improvement (e.g., proximity to a park).” In these Assessments, as noted, properties in the District have Total Benefit = General Benefit + Special Benefit 4.2.d Packet Pg. 283 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 16 close and unique proximity, views and access to the Improvements and uniquely improved desirability from the Improvements and other properties and the public at large do not receive significant benefits because they do not have proximity, access or views of the Improvements. Therefore, the overwhelming proportion of the benefits conferred to property is special and is only minimally received by property outside the Districts or the public at large. BENEFIT FINDING QUANTIFICATION OF GENERAL BENEFIT In this section, the general benefit from landscaping and other types of Improvements is liberally estimated and described, and then budgeted so that it is funded by sources other than the Assessment. BENEFIT TO PROPERTY OUTSIDE THE ASSESSMENT DISTRICTS Properties within the District receive almost all of the special benefits from the Improvements because properties in the District enjoy unique close proximity and access to the Improvements that is not enjoyed by other properties or the public at large. However, certain properties within the proximity/access radius of the Improvements, but outside of the boundaries of the District, may receive some benefit from the Improvements. Since this benefit is conferred to properties outside the District boundaries, it contributes to the overall general benefit calculation and will not be funded by the Assessments. The general benefit to property outside of the District is calculated with the parcel and data analysis performed by SCI Consulting Group. Since the properties outside the District but with frontage abutting the Improvements cannot be assessed by the District, this is a form of general benefit to other property. The primary way that parcels outside the district benefit by the Improvements is from views. Therefore, parcels that abut the landscape areas and are not separated from the Improvements by a privacy fence are counted for this general benefit. Since very few of the Improvements lie at the District boundary near occupied parcels, there are very few parcels in this category. The general benefit to property outside of the District is calculated as follows. 18 Parcels Outside District 18,422 Parcels In the District 18 18 +18,422 =0.10% Calculation: Assumptions: General Benefit to Property Ouside the District 4.2.d Packet Pg. 284 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 17 BENEFIT TO PROPERTY INSIDE THE ASSESSMENT DISTRICTS THAT IS INDIRECT AND DERIVATIVE The “indirect and derivative” benefit to prop erty within the District is particularly difficult to calculate. A solid argument can be presented that all benefit within the District is special, because the other Improvements are clearly “over and above” and “particular and distinct” when compared with the baseline level of service and the unique proximity, access and views of the other Improvements enjoyed by benefiting properties in the District. Nevertheless, the SVTA vs. SCCOSA decision indicates there may be general benefit “conferred on real property located in the district” A measure of the general benefits to property within the Assessment area is the percentage of land area within or directly abutting the District that is publicly owned and used for regional purposes such as major roads, rail lines and other regional facilities because such properties used for regional purposes could provide indirect benefits to the public at large. Approximately 4.43% of the land area in the District is used for such regional purposes, so this is a measure of the general benefits to property within the District. BENEFIT TO THE PUBLIC AT LARGE The general benefit to the public at large can be estimated by the proportionate amount of time that the District’s Improvements are used and enjoyed by individuals who a re not residents, employees, customers or property owners in the District. It should be noted that these Improvements do not attract the public at large in the same way as park improvements – and they confer far less benefit to the public at large than do similar park improvements. In essence, the public does not visit an area to enjoy landscaping in the same way as they may visit a park. One way to measure the special benefit to the general public is by the vehicle trips through an area with Improvements by people who are not residents within the District. Of the four ways benefits are conferred (proximity, access, views, extension of a property’s green space, and creation of lots), the only benefit that is conferred by way of pass-by vehicle trips is views, which accounts for 25% of the total benefits. This is further reduced to 10% due the brevity of the views and because views are less critically important and are enjoyed much less often to the average non-resident driver than to a resident. Specific data is not available for the number of vehicle trips by non -residents of the District past the Improvements, which lie mostly on arterial roadways. A conservative estimate of vehicle trips by non-residents is 50% of all vehicle trips. Therefore (50% of 10% =) 5.00% of the benefits from the other Improvements are general benefits to the public at large. TOTAL GENERAL BENEFITS Using a sum of these three measures of general benefit, we find that approximately 9.53% of the benefits conferred by the Improvements may be general in nature and should be funded by sources other than the assessment. 4.2.d Packet Pg. 285 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 18 Outside the District Inside the District Public At Large Total General Benefit Landscaping General Benefit Calculation 0.10% 4.43% 5.00% 9.53% Although this analysis finds that 9.53% of the assessment may provide general benefits from the Improvements, the Assessment Engineer establishes a requirement for a minimum contribution from sources other than the assessments of 10%. This minimum contribution above the measure of general benefits will serve to provide additional coverage for any other general benefits. CURRENT GENERAL BENEFIT CONTRIBUTION FROM THE CITY This general benefit cannot be funded from the Assessments; it must be funded from other sources such as the City’s General Fund or other non-District funds. These contributions can also be in the form of in-lieu contributions to the installation and maintenance of the Improvements such as other City assets that support and protect the Improvements. The City of Diamond Bar will contribute both monetary and in-lieu resources to ensure that the general benefits conferred by the proposed Improvements are not funded by the District’s Assessments. A summary and quantification of these other contributions from the City is discussed below: The City of Diamond Bar owns, maintains, rehabilitates and replaces curb and gutter along the border of the District Improvements. This curb and gutter serves to support, contain, retain, manage irrigation flow and growth, and provide a boundary for the Improvements. The contribution from the City towards general benefit from the maintenance, rehabilitation, and replacement of the curb and gutter is conservatively estimated to be 5%. The City owns and maintains a storm drainage system along the border of the District Improvements. This system serves to prevent flooding and associated damage to the Improvements, and manage urban runoff including local pollutants loading from the Improvements. The contribution from the City towards general benefit from the mainte nance, and operation of the local storm drainage system is conservatively estimated to be 5%. The City owns and maintains local public streets along the border of the District Improvements. These public streets provide access to the Improvements for its enjoyment as well as efficient maintenance. The contribution from the City towards general benefit from the maintenance of local public streets is conservatively estimated to be 5%. 4.2.d Packet Pg. 286 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 19 The value of the construction of the improvements can be quantified and monetized as an annuity. Since this construction was performed and paid for by non-assessment funds, this “annuity” can be used to offset general benefit costs and is conservatively estimated to contribute 10%. The total General Benefit is liberally quantified at 10% which is entirely offset by the conservatively quantified total non-assessment contribution towards general benefit described above of 25%. Therefore, no additional General Benefit must be funded by the City. METHOD OF APPORTIONMENT The development of an Assessment methodology requires apportioning to determine the relative special benefit for each property. As the District was formed by a different engineer of record, the precise language from the most recent Engineer’s Report is included below: The net amount to be assessed upon lands within the District in accordance with this report is apportioned by a formula and method which fairly distributes the amount among all assessable lots or parcels in proportion to the estimated benefits to be received by each lot or parcel from the Improvements, namely the maintenance and servicing of public landscaping improvements within such District. The maintenance and servicing of public landscaping improvements installed and constructed in public places in the City of Diamond Bar provides a special benefit which is received by each and every lot or parcel within the District, tending to enhance their value. The primary benefits on landscaping are set forth below: 1. Beautification of the streets which are used by all of the residents in Diamond Bar. 2. A sense of community pride resulting from well-maintained green spaces. 3. The enhancement of the value of property which results from the foregoing benefits. The existing land use information indicates that well over 90 percent of the parcels within the City of Diamond Bar are residences. Because the special benefits derived apply equally to all residents and parcels, it has been determined that all assessable parcels would receive the same net assessment.2 ANNUAL ASSESSMENT CALCULATION For fiscal year 2020-21 the amount of Assessments for the District is not increased from prior years. The assessment per parcel is $15. 2 From the Engineer’s Report, Update of Assessment District No. 38, Fiscal Year 2014-15, City of Diamond Bar, dated June 3, 2014 4.2.d Packet Pg. 287 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 20 DURATION OF ASSESSMENT The District was formed or annexed in previous years. It is proposed that the Assessments be continued every year after their formation or annexation, so long as the public Improvements need to be maintained and improved, and the City requires funding from the Assessments for these Improvements in the District. As noted previously, the Assessment can continue to be levied annually after the City Council approves an annually updated Engineer’s Report, budget for the Assessment, Improvements to be provided, and other specifics of the Assessment. In addition, the City Council must hold an annual public hearing to continue the Assessment. APPEALS OF ASSESSMENTS LEVIED TO PROPERTY Any property owner who feels that the Assessment levied on the subject property is in error as a result of incorrect information being used to apply the foregoing method of assessment may file a written appeal with the City of Diamond Bar City Manager or his or her designee. Any such appeal is limited to correction of an Assessment during the then-current Fiscal Year and applicable law. Upon the filing of any such appeal, the City Manager or his or her designee will promptly review the appeal and any information provided by the property owner. If the City Manager or his or her designee finds that the Assessment should be modified, the appropriate changes shall be made to the Assessment Roll. If any such changes are approved after the Assessment Roll has been filed with the County for collection, the City Manager or his or her designee is authorized to refund to the property owner the amount of any approved reduction. Any dispute over the decision of the City Manager or his or her designee shall be referred to the Diamond Bar City Council, and the decision of the City Council shall be final. ASSESSMENT FUNDS MUST BE EXPENDED WITHIN THE DISTRICT AREA The net available Assessment funds, after incidental, administrative, financing and other costs shall be expended exclusively for Improvements within the boundaries of the District or as described herein, and appropriate incidental and administrative costs as defined in the Plans and Specifications section. 4.2.d Packet Pg. 288 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 21 ASSESSMENT WHEREAS, the City of Diamond Bar directed the undersigned engineer of Work to prepare and file a report presenting an estimate of costs, a Diagram for the District and an assessment of the estimated costs of the Improvements upon all assessable parcels within the District; NOW, THEREFORE, the undersigned, by virtue of the power vested in me under the Act, Article XIIID of the California Constitution, and the order of the City of Diamond Bar City Council, hereby makes the following Assessment to cover the portion of the estimated cost of the Improvements, and the costs and expenses incidental thereto to be paid by the District. The amount to be paid for said Improvements and the expense incidental thereto, to be paid by the District for the Fiscal Year 2020-21 is generally as follows: TABLE 2: FY 2020-21 SUMMARY COST ESTIMATE As required by the Act, an Assessment Diagram of the District is hereto attached and incorporated herein by reference. The distinctive number of each parcel or lot of land in the District is its Assessor Parcel Number appearing on the Assessment Roll. I do hereby assess and apportion the net amount of the cost and expenses of the Improvements, including the costs and expenses incident thereto, upon the parcels and lots of land within the District, in accordance with the special benefits to be received by each parcel or lot, from the Improvements, and more particularly set forth in the Estimate of Cost and Method of Assessment in the Report. The Assessment is made upon the parcels or lots of land within the District in proportion to the special benefits to be received by the parcels or lots of land, from the Improvements. Each parcel or lot of land is described in the Assessment Roll by reference to its parcel number as shown on the Assessor's Maps of the County of Los Angeles for the Fiscal Year 2020-21. For a more particular description of the property, reference is hereby made to the deeds and maps on file and of record in the office of the County Recorder of the County. Salaries & Benefits 41,673$ Operating Expenses & Services 443,580$ Total for Services 485,253$ Less General Fund Contribution (208,923)$ Net Amount to Assessments 276,330$ 4.2.d Packet Pg. 289 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 22 I hereby will place opposite the Assessor Parcel Number for each parcel or lot within the Assessment Roll, the amount of the assessment for the Fiscal Year 2020-21 for each parcel or lot of land within the District. Dated: June 29, 2020 Engineer of Work By___________________________ Jerry Bradshaw, License No. C48845 4.2.d Packet Pg. 290 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 23 ASSESSMENT DIAGRAM The District boundary is conterminous with the City Limits. The parcels to be assessed in Landscaping Assessment District No. 38 are shown on the Assessment Diagram, which is on file with the City Clerk of the City of Diamond Bar and includes all those properties included in the original formation of the District and subsequent annexations. The following Assessment Diagram is for general location only and is not to be considered the official boundary map. The lines and dimensions of each lot or parcel within the District are those lines and dimensions as shown on the maps of the Assessor of the County of Los Angeles, for Fiscal Year 2020-21, and are incorporated herein by reference, and made a part of this Diagram and this Report. 4.2.d Packet Pg. 291 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 24 4.2.d Packet Pg. 292 CITY OF DIAMOND BAR LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT NO. 38 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 25 ASSESSMENT ROLL An Assessment Roll (a listing of all parcels assessed within the District and the amount of the Assessment) will be filed with the City Clerk and is, by reference, made part of this Report and is available for public inspection during normal office hours at the City Hall at 21810 Copley Drive, 2nd floor, Diamond Bar, California 91765. Each lot or parcel listed on the Assessment Roll is shown and illustrated on the latest County Assessor records and these records are, by reference, made part of this Report. These records shall govern for all details concerning the description of the lots or parcels. 4.2.d Packet Pg. 293 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT FISCAL YEAR 2020-21 JUNE 2020 PURSUANT TO THE LANDSCAPING AND LIGHTING ACT OF 1972, GOVERNMENT CODE AND ARTICLE XIIID OF THE CALIFORNIA CONSTITUTION ENGINEER OF WORK: SCIConsultingGroup 4745 MANGELS BOULEVARD FAIRFIELD, CALIFORNIA 94534 PHONE 707.430.4300 FAX 707.430.4319 WWW.SCI-CG.COM 4.2.e Packet Pg. 294 (THIS PAGE INTENTIONALLY LEFT BLANK) 4.2.e Packet Pg. 295 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE i CITY OF DIAMOND BAR CITY COUNCIL Steve Tye, Mayor Nancy Lyons, Mayor Pro Tem Andrew Chou, Councilmember Ruth Low, Councilmember Jennifer “Fred” Mahlke, Councilmember CITY MANAGER Dan Fox PUBLIC WORKS DIRECTOR / CITY ENGINEER David Liu CITY ATTORNEY David DeBerry ENGINEER OF WORK Jerry Bradshaw, P.E. SCI Consulting Group 4.2.e Packet Pg. 296 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE ii (THIS PAGE INTENTIONALLY LEFT BLANK) 4.2.e Packet Pg. 297 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE iii TABLE OF CONTENTS INTRODUCTION....................................................................................................................... 5 OVERVIEW ...................................................................................................................... 5 ENGINEER’S REPORT AND CONTINUATION OF ASSESSMENTS .............................................. 5 LEGISLATIVE ANALYSIS .................................................................................................... 6 PLANS & SPECIFICATIONS ...................................................................................................... 9 FISCAL YEAR 2020-21 ESTIMATE OF COST AND BUDGET ....................................................... 11 BUDGET FOR FISCAL YEAR 2020-21 ............................................................................... 11 METHOD OF ASSESSMENT APPORTIONMENT .......................................................................... 12 METHOD OF APPORTIONMENT ........................................................................................ 12 DISCUSSION OF BENEFIT ................................................................................................ 12 SPECIAL BENEFIT .......................................................................................................... 13 GENERAL VERSUS SPECIAL BENEFIT .............................................................................. 15 BENEFIT FINDING ........................................................................................................... 17 METHOD OF APPORTIONMENT ........................................................................................ 19 ANNUAL ASSESSMENT CALCULATION .............................................................................. 20 DURATION OF ASSESSMENT ........................................................................................... 20 APPEALS OF ASSESSMENTS LEVIED TO PROPERTY........................................................... 20 ASSESSMENT FUNDS MUST BE EXPENDED WITHIN THE DISTRICT AREA ............................. 21 ASSESSMENT ...................................................................................................................... 22 ASSESSMENT DIAGRAM ........................................................................................................ 24 ASSESSMENT ROLL ............................................................................................................. 26 4.2.e Packet Pg. 298 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE iv LIST OF TABLES TABLE 1: FY 2020-21 ESTIMATE OF COSTS ........................................................................... 11 TABLE 2: FY 2020-21 SUMMARY COST ESTIMATE .................................................................. 22 4.2.e Packet Pg. 299 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 5 INTRODUCTION OVERVIEW The City of Diamond Bar (the “City”) services and maintains mini-parks, slopes and open space areas and other improvements (“Improvements”) in the Diamond Bar Hills area of the City. In order to fund the maintenance and operation (“Services”) of these projects and improvements, Landscaping Assessment District No. 39 (“District”) was formed in 1985 by the County of Los Angeles prior to the incorporation of the City of Diamond Bar. Upon incorporation in 1989, the City assumed jurisdiction over the District. This Engineer’s Report ("Report") was prepared to establish the budget for the Improvements (as described below) that will be funded by the 2020-21 assessments and other revenue, and to determine the general and special benefits received from the Improvements by property within the District and the method of assessment apportionment to lots and parcels. This Report and the assessments have been made pursuant to the Landscaping and Lighting Act of 1972, Part 2 of Division 15 of the California Streets and Highways Code (the "Act") and Article XIIID of the California Constitution (the “Article”). ENGINEER’S REPORT AND CONTINUATION OF ASSESSMENTS The assessments have been continued for 30 years. In each subsequent year for which the assessments will be continued, the Diamond Bar City Council (the “Council”) must direct the preparation of an Engineer’s Report, budgets, and proposed assessments for the upcoming fiscal year. After the report is completed, the City Council may preliminarily approve the Engineer’s Report and the continued assessments and establish the date for a public hearing on the continuation of the assessments. Accordingly, this Engineer’s Report (the “Report”) was prepared pursuant to the direction of the City Council. As required by the Act, this Report includes plans and specifications, a diagram or map of the District, the benefits received by property from the Improvements within the District, and the method of assessment apportionment to lots and parcels within the District. If the Council approves this Engineer’s Report and the continuation of the Assessments by resolution, a notice of public hearing must be published in a local newspaper at least 10 days prior to the date of the public hearing. The resolution preliminarily approving the Engineer’s Report and establishing the date for a public hearing is typically used for this notice. Following the minimum 10-day time period after publishing the notice, a public heari ng is held for the purpose of allowing public testimony about the proposed continuation of the Assessments. This hearing is currently scheduled for July 21, 2020. At this hearing, the Council will consider approval of a resolution confirming the continuation of the Assessments for fiscal year 2020-21. If so confirmed and approved, the Assessments would be submitted to the Los Angeles County Auditor/Controller for inclusion on the property tax rolls for fiscal year 2020-21. 4.2.e Packet Pg. 300 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 6 Beginning in 2015, SCI Consulting Group became the Assessment Engineer for the District. To maintain an accurate reference and legally defensible record of the District, pertinent language used in previous engineer’s reports has been retained herein and is cited in italics as appropriate. LEGISLATIVE ANALYSIS PROPOSITION 218 The Right to Vote on Taxes Act was approved by the voters of California on November 6, 1996 and is now Article XIIIC and XIIID of the California Constitution. Proposition 218 provides for benefit assessments to be levied to fund the cost of providing services and improvements, as well as maintenance and operation expenses to a public improve ment which benefits the assessed property. SILICON VALLEY TAXPAYERS ASSOCIATION, INC. V SANTA CLARA COUNTY OPEN SPACE AUTHORITY (2008) 44 CAL. 4TH 431 In July of 2008, the California Supreme Court issued its ruling on the Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority (“SVTA”). This ruling is significant in that the Court clarified how Proposition 218 made changes to the determination of special benefit. The Court also found that: ➢ Benefit assessments are for special, not general, benefit ➢ The services and/or improvements funded by assessments must be clearly defined ➢ Special benefits are directly received by and provide a direct advantage to property in the Improvement District ➢ The assessment paid by property should be proportional to the special benefits it receives from the Improvements This Engineer’s Report and the process used to establish the continuation of the assessments for fiscal year 2020-21 are consistent with the SVTA decision and with the requirements of Article XIIIC and XIIID of the California Constitution based on the foll owing factors: 1. The District is drawn to include the entire City; although only parcels deriving special benefits are included in the assessment rolls. Thus, zones of benefit are not required, and the assessment revenue derived from real property in the District is expended only on the Improvements in the District. 2. The Improvements which are constructed and maintained with assessment proceeds in the District are located in close proximity to the real property subject to the assessment. The Improvements provide landscaping and other services to the residents of such assessed property. The proximity of the Improvements to the assessed parcels provides 4.2.e Packet Pg. 301 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 7 a special benefit to the parcel being assessed pursuant to the factors outlined by the Supreme Court in that decision. 3. Due to their proximity to the assessed parcels, the Improvements financed with assessment revenues in the District benefit the properties in that District in a manner different in kind from the benefit that other parcels of real property in the City derive from such Improvements, and the benefits conferred on such property in the District are more extensive than a general increase in property values. 4. The assessments paid in the District are proportional to the special benefit that each parcel within that Assessment District receives from the Improvements because: a. The specific landscaping Improvements and maintenance and utility costs thereof in the District are specified in this Report; and b. Such Improvement and maintenance costs in the District are allocated among different types of property located within the District, and equally among those properties which have similar characteristics, such as single-family residential parcels, multi-family residential parcels, commercial parcels, industrial parcels, etc. DAHMS V. DOWNTOWN POMONA PROPERTY (2009) 174 CAL. APP. 4TH 708 In Dahms v. Downtown Pomona Property (“Dahms”) the Court upheld an assessment that was 100% special benefit (i.e. 0% general benefit) on the rationale that the services and improvements funded by the assessments were directly provided to property in the assessment district. The Court also upheld discounts and exemptions from the assessment for certain properties. BONANDER V. TOWN OF TIBURON (2009) 180 CAL. APP. 4TH 103 Bonander v. Town of Tiburon (“Bonander”), the 1st District Court of Appeal overturned a benefit assessment approved by property owners to pay for placing overhead utility lines underground in an area of the Town of Tiburon. The Court invalidated the assessments primarily on the grounds that the assessments had been apportioned to assessed property based on the costs within sub-areas of the assessment district instead of the overall cost of the improvements and the overall proportional special benefits. BEUTZ V. COUNTY OF RIVERSIDE (2010) 184 CAL. APP. 4TH 1516 Steven Beutz v. County of Riverside (“Beutz”) the Court overturned an assessment for park maintenance in Wildomar, California, primarily because the general benefits associated with improvements and services were not explicitly calculated, quantified and separated from the special benefits. GOLDEN HILL NEIGHBORHOOD ASSOCIATION V. CITY OF SAN DIEGO (2011) 199 CAL. APP. 4TH 416 On September 22, 2011, the San Diego Court of Appeal issued a decision on the Golden Hill Neighborhood Association v. City of San Diego appeal. This decision overturned an assessment for street and landscaping maintenance in the Greater Golden Hill 4.2.e Packet Pg. 302 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 8 neighborhood of San Diego, California. The court described two primary reasons for its decision. First, like in Beutz, the court found the general benefits associated with services were not explicitly calculated, quantified and separated from the special benefit s. Second, the court found that the City had failed to record the basis for the assessment on its own parcels. COMPLIANCE WITH CURRENT LAW This Engineer’s Report is consistent with the SVTA decision and with the requirements of Article XIIIC and XIIID of the California Constitution because the Improvements to be funded are clearly defined; the benefiting property in the District enjoys close and unique proximity, access and views to the Improvements; the Improvements serve as an extension of usable land area for benefiting properties in the District and such special benefits provide a direct advantage to property in the District that is not enjoyed by the public at large or other property. This Engineer’s Report is consistent with Beutz, Dahms and Greater Golden Hill because the Improvements will directly benefit property in the District and the general benefits have been explicitly calculated and quantified and excluded from the Assessments. The Engineer’s Report is consistent with Bonander because the Assessments have been apportioned based on the overall cost of the Improvements and Services proportional special benefit to each property, rather than the proportional cost to the District to provide the Improvements to specific properties. 4.2.e Packet Pg. 303 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 9 PLANS & SPECIFICATIONS The City maintains landscaping and other improvements in locations within the District’s boundaries. The work and improvements to be undertaken by Landscaping Assessment District No. 39, (“District”), and the cost thereof paid from the levy of the annual Assessment provide special benefit to Assessor Parcels within the District as defined in the Method of Assessment herein. In addition to the definitions provided by the Landscaping and Lighting Act of 1972 (the “Act”), the work and improvements are generally described as mini-parks, slopes and open space areas within the District. The Assessment Diagram shows the location and extent of the Improvements to be installed, maintained or serviced by the proceeds from this Assessment District. Installation, maintenance and servicing of Improvements, may include, but are not limited to, turf and play areas, landscaping, ground cover, shrubs and trees, irrigation systems, sidewalks, parking lots, lighting, fencing, entry monuments, basketball courts, tennis courts, other recreational facilities, graffiti removal and repainting, and labor, materials, supplies, utilities and equipment, as applicable, at each of the locations owned, operated or maintained by the District. As applied herein, “Installation” means the construction of Improvements, including, but not limited to, land preparation (such as grading, leveling, cutting and filling), s od, landscaping, irrigation systems, walkways and drainage, lights, playground equipment, play courts, playing fields, recreational facilities and public restrooms. “Maintenance” means the furnishing of services and materials for the ordinary and usual maintenance, operation and servicing of any improvement, including repair, removal or replacement of all or any part of any improvement; providing for the life, growth, health, and beauty of landscaping, including cultivation, irrigation, trimming, spraying, fertilizing, or treating for disease or injury; the removal of trimmings, rubbish, debris, and other solid waste, and the cleaning, sandblasting, and painting of walls and other improvements to remove or cover graffiti. “Servicing” means the furnishing of electric current, or energy, gas or other illuminating agent for any public lighting facilities or for the lighting or operation of any other improvements; or water for the irrigation of any landscaping, the operation of any fountains, or the maintenance of any other improvements. Incidental expenses include all of the following: (a) The costs of preparation of the report, including plans, specifications, estimates, diagram, and assessment; (b) the costs of printing, advertising, and the giving of published, posted, and mailed notices; (c) compensation payable to the County for collection of assessments; (d) compensation of any engineer or attorney employed to render services in proceedings pursuant to this part; (e) any other expenses incidental to the construction, installation, or maintenance and servicing of the Improvements; (f) any expenses incidental to the issuance of bonds or notes pursuant 4.2.e Packet Pg. 304 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 10 to Streets & Highways Code Section 22662.5; and (g) costs associated with any elections held for the approval of a new or increased assessment (Streets & Highways Code §22526). Modifications to the District structure could include, but are not limited to, substantial changes or expansion of the Improvements provided, substantial changes in the service provided, modifications or restructuring of the District including annexation or detachment of specific parcels, revisions in the method of apportionment, or proposed new or increased assessments. The assessment proceeds will be exclusively used for Improvements within the District plus incidental expenses. 4.2.e Packet Pg. 305 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 11 FISCAL YEAR 2020-21 ESTIMATE OF COST AND BUDGET BUDGET FOR FISCAL YEAR 2020-21 The 1972 Act provides that the total costs for providing the maintenance and servicing of the District Improvements and facilities can be recovered in the assessment spread including incidental expenses. The latter can include engineering fees, legal fees, printing, mailing, postage, publishing and all other costs identified with the District proceedings. An estimate of District costs for fiscal year 2020-21 for the maintenance and servicing of the Improvements is provided below. TABLE 1: FY 2020-21 ESTIMATE OF COSTS A. The Act requires that proceeds from the assessments must be deposited into a special fund that has been set up for the revenues and expenditures of the District. Moreover, funds raised by the assessment shall be used only for the purposes stated within this Report. Any balance remaining at the end of the Fiscal Year, June 30, must be carried over to the next Fiscal Year. The District may also establish a reserve fund for contingencies and special projects as well as a capital improvement fund for accumulating funds for larger capital improvement projects or capital renovation needs. Any remaining balance would either be placed in the reserve fund or would be used to reduce future years' assessments. Expenditure Item Salaries & Benefits 24,504$ Operating Expenses Advertising 5,000$ Utilities 110,000$ Maintenance of Grounds/Buildings 34,500$ Professional Services 5,640$ Contract Services Trails Maintenance 146,500$ Tree Maintenance 6,500$ Weed Abatement 43,104$ Estimated Expenditures 375,748$ Revenue Item Direct Benefit Assessments 294,764$ General Fund Contribution 80,984$ Estimated Revenues 375,748$ Budget Allocation to Parcels Total Assessment BudgetA 294,764$ Total Assessable Parcels 1249 Assessment per Parcel 236$ 4.2.e Packet Pg. 306 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 12 METHOD OF ASSESSMENT APPORTIONMENT METHOD OF APPORTIONMENT This section of the Engineer's Report explains the benefits to be derived from the Improvements and the methodology used to apportion the total assessment to properties within the District. The District consists of certain assessor parcels within the bou ndaries as defined by the Assessment Diagram referenced in this report and the parcels identified by the Assessor Parcel Numbers listed with the levy roll. The parcel list includes all privately and publicly owned parcels as shown. The method used for apportioning the Assessment is based upon the relative special benefits to be derived by the properties in the District over and above general benefits conferred on real property or to the public at large. The Assessment is apportioned to lots and parcels in proportion to the relative special benefit from the Improvements. The apportionment of special benefit is a two -step process: the first step is to identify the types of special benefit arising from the Improvements and the second step is to allocate the Assessments to property based on the estimated relative special benefit for each type of property. DISCUSSION OF BENEFIT In summary, the Assessments can only be levied based on the special benefit to property. This benefit is received by property over and above any general benefits. With reference to the requirements for assessments, Section 22573 of the Landscaping and Lighting Act of 1972 states: "The net amount to be assessed upon lands within an assessment district may be apportioned by any formula or method which fairly distributes the net amount among all assessable lots or parcels in proportion to the estimated benefits to be received by each such lot or parcel from the improvements." Proposition 218, as codified in Article XIIID of the California Constitution, has confirmed that assessments must be based on the special benefit to property and that the value of the special benefits must exceed the cost of the assessment: "No assessment shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel." The following benefit categories summarize the types of special benefit to residential, commercial, industrial and other lots and parcels resulting from the Improvements to be provided with the assessment proceeds. These types of special benefit are summarized as follows: 4.2.e Packet Pg. 307 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 13 A. Proximity to Improved Landscaped Areas and Other Public Improvements within the District. B. Access to Improved landscaped areas and Other Public Improvements within the District. C. Improved Views within the District. D. Extension of a property’s outdoor areas and green spaces for properties within close proximity to the Improvements. E. Safety and Security within the District F. Creation of individual lots for residential and commercial use that, in absence of the Assessments, would not have been created. In this case, the recent SVTA v. SCCOSA decision provides enhanced clarity to the definitions of special benefits to properties from similar improvements in three distinc t areas: ➢ Proximity ➢ Expanded or improved access ➢ Views The SVTA v. SCCOSA decision also clarifies that a special benefit is a service or improvement that provides a direct advantage to a parcel and that indirect or derivative advantages resulting from the overall public benefits from a service or improvement are general benefits. The SVTA v. SCCOSA decision also provides specific guidance that park improvements are a direct advantage and special benefit to property that is proximate to a park that is improved by an assessment: The characterization of a benefit may depend on whether the parcel receives a direct advantage from the improvement (e.g. proximity to a park) or receives an indirect, derivative advantage resulting from the overall public benefits of the improvement (e.g. general enhancement of the district’s property values). Proximity, improved access and views, in addition to the other special benefits listed herein further strengthen the basis of these assessments. Moreover, the Dahms decision further clarified that certain services and improvements funded by assessments, that are over and above what otherwise would be provided and that other property in general and the public do not share or receive are 100% special benefit. The assessment-funded services upheld by Dahms included streetscape maintenance and security services. SPECIAL BENEFIT The District was formed by a different engineer of record. From the original Engineer’s Report, the primary special benefits on landscaping are as set forth below: 4.2.e Packet Pg. 308 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 14 1. Beautification of the streets which are used by all of the residents in Diamond Bar. 2. A sense of community pride resulting from well-maintained green spaces. 3. The enhancement of the value of property which results from the foregoing benefits. 4. The enhancement of the value of property which results from the foregoing benefits.1 In addition, SCI assessment engineers have identified the following special benefits: PROXIMITY TO IMPROVED LANDSCAPED AREAS WITHIN THE DISTRICT Only the specific properties within close proximity to the Improvements are included in the District. The District has been narrowly drawn to include the properties that receive special benefits from the Improvements. Therefore, property in the District enjoys unique and valuable proximity and access to the Improvements that the public at large and property outside the District do not share. In absence of the Assessments, the Improvements would not be provided , and the public improvements funded in the District would be degraded due to insufficient funding for maintenance, upkeep and repair. Therefore, the Assessments provide Improvements that are over and above what otherwise would be provided. Improvements that are over and above what otherwise would be provided do not by themselves translate into special benefits but when combined with the unique proximity and access enjoyed by parcels in the District, they provide a direct advantage and special benefit to property in the District. ACCESS TO IMPROVED LANDSCAPED AREAS WITHIN THE DISTRICT Since the parcels in the District are nearly the only parcels that enjoy close access to the Improvements, they directly benefit from the unique close access to improved landscaping areas and other public improvements that are provided by the Assessments. This is a direct advantage and special benefit to property in the District. IMPROVED VIEWS WITHIN THE ASSESSMENT DISTRICT The City, by maintaining permanent public improvements funded by the Assessments in the District, provides improved views to properties in the District. The properties in the District enjoy close and unique proximity, access and views of the specific Improvements funded in the District; therefore, the improved and protected views provided by the Assessments are another direct and tangible advantage that is uniquely conferred upon property in the District. 1 From the Engineer’s Report, Update of Assessment District No. 39, Fiscal Year 2014-15, City of Diamond Bar, dated June 3, 2014 4.2.e Packet Pg. 309 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 15 EXTENSION OF A PROPERTY’S OUTDOOR AREAS AND GREEN SPACES FOR PROPERTIES WITHIN CLOSE PROXIMITY TO THE IMPROVEMENTS In large part because it is cost prohibitive to provide large open land areas on property in the District, the residential, commercial and other benefiting properties in the District do not have large outdoor areas and green spaces. The Improvements within the District provide additional outdoor areas that serve as an effective extension of the land area for proximate properties because the Improvements are uniquely proximate and accessible to property in close proximity to the Improvements. The Improvements, therefore, provide an important, valuable and desirable extension of usable land area for the direct advantage and special benefit of properties in the District because such properties have uniquely good and close proximity to the Improvements. SAFETY AND SECURITY WITHIN THE ASSESSMENT DISTRICT The City, through proper installation, maintenance and servicing of permanent public improvements funded by the Assessments in the District, provides i ncreased security and safety by preventing crime and suppressing fire. For parks and recreation Improvements, proper lighting and well-kept landscapes help to deter crime and vandalism. Other landscaped area activities such as slope maintenance and brush clearing provide critical fire suppression. CREATION OF INDIVIDUAL LOTS FOR RESIDENTIAL AND COMMERCIAL USE THAT, IN ABSENCE OF THE ASSESSMENTS, WOULD NOT HAVE BEEN CREATED In most of the District, the original owner/developer(s) of the property within the District agreed unanimously to the Assessments. The Assessments provide the necessary funding for public improvements that were required as a condition of development and subdivision approval. Therefore, such Assessments allowed the original property to be subdivided and for development of the parcels to occur. As parcels were sold, new owners were informed of the Assessments through the title reports, and in some cases, through Department of Real Estate “White Paper” reports that the parcels were subject to assessment. Purchase of property was also an “agreement” to pay the Assessment. Therefore, in absence of the Assessments, the lots within most of the District would not have been created. These parcels, and the improvements that were constructed on the parcels, receive direct advantage and special benefit from the Assessments. GENERAL VERSUS SPECIAL BENEFIT Article XIIIC of the California Constitution requires any local agency proposing to increase or impose a benefit assessment to “separate the general benefits from the special benefits conferred on a parcel.” The rationale for separating special and general benefits is to ensure that property owners subject to the benefit assessment are not paying for general benefits. An assessment can fund special benefits but cannot fund general benefits. Accordingly, a separate estimate of the special and general benefit is given in this section. 4.2.e Packet Pg. 310 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 16 In other words: There is no widely-accepted or statutory formula for general benefit. General benefits are benefits from improvements or services that are not special in nature, are not “particular and distinct” and are not “over and above” benefits received by other properties. SVTA vs. SCCOSA provides some clarification by indicating that general benefits provide “an indirect, derivative advantage” and are not necessarily proximate to the improvements. In this Report, the general benefit is liberally estimated and described, and then budgeted so that it is funded by sources other than the Assessment. The starting point for evaluating general and special benefits is the current, baseline level of service. The Assessment will fund Improvements “over and above” this general, baseline level and the general benefits estimated in this section are over and above the baseline. A formula to estimate the general benefit is listed below: General Benefit = Benefit to Real Property Outside the Assessment District + Benefit to Real Property Inside the Assessment District that is Indirect and Derivative + Benefit to the Public at Large Special benefit, on the other hand, is defined in the state constitution as “a particular and distinct benefit over and above general benefits conferred on real property located in the district or to the public at large.” The SVTA v. SCCOSA decision indicates that a special benefit is conferred to a property if it “receives a direct advantage from the improvement (e.g., proximity to a park).” In these Assessments, as noted, properties in the District have close and unique proximity, views and access to the Improvements and un iquely improved desirability from the Improvements and other properties and the public at large do not receive significant benefits because they do not have proximity, access or views of the Improvements. Therefore, the overwhelming proportion of the bene fits conferred to property is special and is only minimally received by property outside the District s or the public at large. Total Benefit = General Benefit + Special Benefit 4.2.e Packet Pg. 311 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 17 BENEFIT FINDING QUANTIFICATION OF GENERAL BENEFIT In this section, the general benefit from landscaping and other types of Improvements is liberally estimated and described, and then budgeted so that it is funded by sources other than the Assessment. BENEFIT TO PROPERTY OUTSIDE THE ASSESSMENT DISTRICTS Properties within the District receive almost all of the special benefits from the Improvements because properties in the District enjoy unique close proximity and access to the Improvements that is not enjoyed by other properties or the public at large. However, certain properties within the proximity/access radius of the Improvements, but outside of the boundaries of the District, may receive some benefit from the Improvements. Since this benefit is conferred to properties outside the District boundaries, it contributes to the overall general benefit calculation and will not be funded by the Assessments. The general benefit to property outside of the District is calculated with the parcel and data analysis performed by SCI Consulting Group. Since certain properties outside the District enjoy close proximity and access to the Improvements cannot be assessed by the District, this is a form of general benefit to other property. There are eight parcels outside the District that lie within a half mile travel distance of one of mini-parks within the District. In addition, there are 87 parcels outside the District that are directly adjacent to areas where brush clearing activity is performed by the District. The benefits conferred to these properties do not in clude the Lot Creation benefit factor, therefore the benefit is reduced by half. The general benefit to property outside of the District is calculated as follows. BENEFIT TO PROPERTY INSIDE THE ASSESSMENT DISTRICTS THAT IS INDIRECT AND DERIVATIVE The “indirect and derivative” benefit to property within the District is particularly difficult to calculate. A solid argument can be presented that all benefit within the District is special, because the other Improvements are clearly “over and above” and “particular and distinct” when compared with the baseline level of service and the unique proximity, access and views of the other Improvements enjoyed by benefiting properties in the District. 87 Parcels Outside District 1,249 Parcels In the District 50%Benefit Factor 87 87 +1,249 x 50% Assumptions: Calculation: General Benefit to Property Ouside the District =3.26% 4.2.e Packet Pg. 312 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 18 Nevertheless, the SVTA vs. SCCOSA decision indicates there may be general benefit “conferred on real property located in the district” A measure of the general benefits to property within the Assessment area is the percentage of land area within or directly abutting the District that is publicly owned and used for regional purposes such as regional parks, major roads, rail lines and other regional facilities because such properties used for regional purposes could provide indirect benefits to the public at large. Approximately 1.51% of the land area in the District is used for such regional purposes, so this is a measure of the general benefits to property within the District. BENEFIT TO THE PUBLIC AT LARGE The general benefit to the public at large can be estimated by the proportionate amount of time that the District’s Improvements are used and enjoyed by individuals who are not residents, employees, customers or property owners in the District. There are two ways in which the public at large can enjoy the improvements, with each counting for half of the general benefit: use of parks, and pass-by trips where landscaped areas can be viewed. In the case of the mini-parks that serve primarily the neighborhood, City staff estimate that approximately 10% of the users do not live, work or own property in the District. The general landscape improvements are typically along slopes and open space areas, out of view of the general public; no general benefit is conferred for views of landscaping. Finally, the general benefits conferred to the public at large does not include the benefit of lot creation, so this benefit is further reduced by half. Therefore, we find that ((50% of 10%) x 50% =) 2.50% of the benefits from the Improvements are general benefits to the public at large. TOTAL GENERAL BENEFITS Using a sum of these three measures of general benefit, we find that approximately 7.27% of the benefits conferred by the Improvements may be general in nature and should be funded by sources other than the assessment. Although this analysis finds that 7.27% of the assessment may provide general benefits from the Improvements, the Assessment Engineer establishes a requirement for a minimum contribution from sources other than the assessments of 8%. This minimum contribution above the measure of general benefits will serve to provide additional coverage for any other general benefits. Outside the District Inside the District Public At Large Total General Benefit 3.26% 1.51% 2.50% 7.27% Landscaping General Benefit Calculation 4.2.e Packet Pg. 313 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 19 CURRENT GENERAL BENEFIT CONTRIBUTION FROM THE CITY This general benefit cannot be funded from the Assessments; it must be funded from other sources such as the City’s General Fund or other non-District funds. These contributions can also be in the form of in-lieu contributions to the installation and maintenance of the Improvements such as other City assets that support and protect the Improvements. The City of Diamond Bar will contribute both monetary and in-lieu resources to ensure that the general benefits conferred by the proposed Improvements are not funded by the District’s Assessments. A summary and quantification of these other contributions from the City is discussed below: The City of Diamond Bar owns, maintains, rehabilitates and replaces curb and gutter along the border of the District Improvements. This curb and gutter serves to support, contain, retain, manage irrigation flow and growth, and provide a boundary for the Improvements. The contribution from the City towards general benefit from the maintenance, rehabilitation, and replacement of the curb and gutter is conservatively estimated to be 5%. The City owns and maintains a storm drainage system along the border of the District Improvements. This system serves to prevent flooding and associated damage to the Improvements, and manage urban runoff including local pollutants loading from the Improvements. The contribution from the City towards general benefit from the maintenance, and operation of the local storm drainage system is conservatively estimated to be 5%. The City owns and maintains local public streets along the border of the District Improvements. These public streets provide access to the Improvements for its enjoyment as well as efficient maintenance. The contribution from the City towards general benefit from the maintenance of local public streets is conservatively estimated to be 5%. The value of the construction of the improvements can be quantified and monetized as an annuity. Since this construction was performed and paid for by non-assessment funds, this “annuity” can be used to offset general benefit costs and is conservatively estimated to contribute 10%. The total General Benefit is liberally quantified at 8% which is entirely offset by the conservatively quantified total non-assessment contribution towards general benefit described above of 25%. Therefore, no additional General Benefit must be funded by the City. METHOD OF APPORTIONMENT The development of an Assessment methodology requires apportioning to determine the relative special benefit for each property. As the District was formed by a different engineer of record, the precise language from the most recent Engineer’s Report is included below: 4.2.e Packet Pg. 314 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 20 The net amount to be assessed upon lands within the District in accordance with this report is apportioned by a formula and method which fairly distributes the amount among all assessable lots or parcels in proportion to the estimated benefits to be received b y each lot or parcel from the Improvements, namely the maintenance and servicing of public landscaping improvements within such District. The maintenance and servicing of public landscaping improvements installed and constructed in public places in the Cit y of Diamond Bar provides a special benefit which is received by each and every lot or parcel within the District, tending to enhance their value. The primary benefits on landscaping are as set forth below: 1. Beautification of the streets which are used by all of the residents in Diamond Bar. 2. Public parks which can be utilized and enjoyed by all residents within the District. 3. A sense of community pride resulting from well-maintained green spaces. 4. The enhancement of the value of property which results from the foregoing benefits. The existing land use information indicates that all of the parcels within the District are residences. Because the special benefits derived apply equally to all residents and parcels, it has been determined that all assessable parcels would receive the same net assessment.2 ANNUAL ASSESSMENT CALCULATION For fiscal year 2020-21 the amount of Assessments for the District is not increased from the prior year. The assessment per parcel is $236. DURATION OF ASSESSMENT The District was formed or annexed in previous years. It is proposed that the Assessments be continued every year after their formation or annexation, so long as the public Improvements need to be maintained and improved, and the City requires funding from the Assessments for these Improvements in the District. As noted previously, the Assessment can continue to be levied annually after the City Council approves an annually updated Engineer’s Report, budget for the Assessment, Improvements to be provided, and other specifics of the Assessment. In addition, the City Council must hold an annual public hearing to continue the Assessment. APPEALS OF ASSESSMENTS LEVIED TO PROPERTY Any property owner who feels that the Assessment levied on the subject property is in error as a result of incorrect information being used to apply the foregoing method of assessment may file a written appeal with the City of Diamond Bar City Manager or his or her designee. 2 From the Engineer’s Report, Update of Assessment District No. 39, Fiscal Year 2014-15, City of Diamond Bar, dated June 3, 2014 4.2.e Packet Pg. 315 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 21 Any such appeal is limited to correction of an Assessment during the then-current Fiscal Year and applicable law. Upon the filing of any such appeal, the City Manager or his or her designee will promptly review the appeal and any information provided by the property owner. If the City Manager or his or her designee finds that the Assessment should be modified, the appropriate changes shall be made to the Assessment Roll. If any such changes are approved after the Assessment Roll has been filed with the County for collection, the City Manager or his or her designee is authorized to refund to the property owner the amount of any approved reduction. Any dispute over the decision of the City Manager or his or her designee shall be referred to the Diamond Bar City Council, and the decision of the City Council shall be final. ASSESSMENT FUNDS MUST BE EXPENDED WITHIN THE DISTRICT AREA The net available Assessment funds, after incidental, administrative, financing and other costs shall be expended exclusively for Improvements within the boundaries of the District or as described herein, and appropriate incidental and administrative costs as defined in the Plans and Specifications section. 4.2.e Packet Pg. 316 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 22 ASSESSMENT WHEREAS, the City of Diamond Bar directed the undersigned engineer of Work to prepare and file a report presenting an estimate of costs, a Diagram for the District and an assessment of the estimated costs of the Improvements upon all assessable parcels within the District; NOW, THEREFORE, the undersigned, by virtue of the power vested in me under the Act, Article XIIID of the California Constitution, and the order of the City of Diamond Bar City Council, hereby makes the following Assessment to cover the portion of the estimated cost of the Improvements, and the costs and expenses incidental thereto to be paid by the District. The amount to be paid for said Improvements and the expense incidental thereto, to be paid by the District for the Fiscal Year 2020-21 is generally as follows: TABLE 2: FY 2020-21 SUMMARY COST ESTIMATE As required by the Act, an Assessment Diagram of the District is hereto attached and incorporated herein by reference. The distinctive number of each parcel or lot of land in the District is its Assessor Parcel Number appearing on the Assessment Roll. I do hereby assess and apportion the net amount of the cost and expenses of the Improvements, including the costs and expenses incident thereto, upon the parcels and lots of land within the District, in accordance with the special benefits to be received by each parcel or lot, from the Improvements, and more particularly set forth in the Estimate of Cost and Method of Assessment in the Report. The Assessment is made upon the parcels or lots of land within the District in proportion to the special benefits to be received by the parcels or lots of land, from the Improvements. Each parcel or lot of land is described in the Assessment Roll by reference to its parcel number as shown on the Assessor's Maps of the County of Los Angeles for the Fiscal Year 2020-21. For a more particular description of the property, reference is hereby made to the deeds and maps on file and of record in the office of the County Recorder of the County. Salaries & Benefits 24,504$ Operating Expenses & Services 351,244$ Total for Services 375,748$ Less General Fund Contribution (80,984)$ Net Amount to Assessments 294,764$ 4.2.e Packet Pg. 317 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 23 I hereby will place opposite the Assessor Parcel Number for each parcel or lot within the Assessment Roll, the amount of the assessment for the Fiscal Year 2020-21 for each parcel or lot of land within the District. Dated: June 29, 2020 Engineer of Work By___________________________ Jerry Bradshaw, License No. C48845 4.2.e Packet Pg. 318 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 24 ASSESSMENT DIAGRAM The District boundary and the parcels to be assessed in Landscaping Assessment District No. 39 are shown on the Assessment Diagram, which is on file with the City Clerk of the City of Diamond Bar and includes all those properties included in the original formation of the District and subsequent annexations. The following Assessment Diagram is for general location only and is not to be considered the official boundary map. The lines and dimensions of each lot or parcel within the District are those lines and dimensions a s shown on the maps of the Assessor of the County of Los Angeles, for Fiscal Year 2020-21, and are incorporated herein by reference, and made a part of this Diagram and this Report. 4.2.e Packet Pg. 319 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 25 4.2.e Packet Pg. 320 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 39 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 26 ASSESSMENT ROLL An Assessment Roll (a listing of all parcels assessed within the District and the amount of the Assessment) will be filed with the City Clerk and is, by reference, made part of this Report and is available for public inspection during normal office hours at the City Hall at 21810 Copley Drive, 2nd floor, Diamond Bar, California 91765. Each lot or parcel listed on the Assessment Roll is shown and illustrated on the latest County Assessor records and these records are, by reference, made part of this Report. These records shall govern for all details concerning the description of the lots or parcels. 4.2.e Packet Pg. 321 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT FISCAL YEAR 2020-21 JUNE 2020 PURSUANT TO THE LANDSCAPING AND LIGHTING ACT OF 1972, GOVERNMENT CODE AND ARTICLE XIIID OF THE CALIFORNIA CONSTITUTION ENGINEER OF WORK: SCIConsultingGroup 4745 MANGELS BOULEVARD FAIRFIELD, CALIFORNIA 94534 PHONE 707.430.4300 FAX 707.430.4319 WWW.SCI-CG.COM 4.2.f Packet Pg. 322 (THIS PAGE INTENTIONALLY LEFT BLANK) 4.2.f Packet Pg. 323 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE i CITY OF DIAMOND BAR CITY COUNCIL Steve Tye, Mayor Nancy Lyons, Mayor Pro Tem Andrew Chou, Councilmember Ruth Low, Councilmember Jennifer “Fred” Mahlke, Councilmember CITY MANAGER Dan Fox PUBLIC WORKS DIRECTOR / CITY ENGINEER David Liu CITY ATTORNEY David DeBerry ENGINEER OF WORK Jerry Bradshaw, P.E. SCI Consulting Group 4.2.f Packet Pg. 324 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE ii (THIS PAGE INTENTIONALLY LEFT BLANK) 4.2.f Packet Pg. 325 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE iii TABLE OF CONTENTS INTRODUCTION....................................................................................................................... 5 OVERVIEW ...................................................................................................................... 5 ENGINEER’S REPORT AND CONTINUATION OF ASSESSMENTS .............................................. 5 LEGISLATIVE ANALYSIS .................................................................................................... 6 PLANS & SPECIFICATIONS ...................................................................................................... 9 FISCAL YEAR 2020-21 ESTIMATE OF COST AND BUDGET ....................................................... 11 BUDGET FOR FISCAL YEAR 2020-21 ............................................................................... 11 METHOD OF ASSESSMENT APPORTIONMENT .......................................................................... 12 METHOD OF APPORTIONMENT ........................................................................................ 12 DISCUSSION OF BENEFIT ................................................................................................ 12 SPECIAL BENEFIT .......................................................................................................... 13 GENERAL VERSUS SPECIAL BENEFIT .............................................................................. 15 BENEFIT FINDING ........................................................................................................... 17 METHOD OF APPORTIONMENT ........................................................................................ 19 ANNUAL ASSESSMENT CALCULATION .............................................................................. 20 DURATION OF ASSESSMENT ........................................................................................... 20 APPEALS OF ASSESSMENTS LEVIED TO PROPERTY........................................................... 21 ASSESSMENT FUNDS MUST BE EXPENDED WITHIN THE DISTRICT AREA ............................. 21 ASSESSMENT ...................................................................................................................... 22 ASSESSMENT DIAGRAM ........................................................................................................ 24 ASSESSMENT ROLL ............................................................................................................. 26 4.2.f Packet Pg. 326 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE iv LIST OF TABLES TABLE 1: FY 2020-21 ESTIMATE OF COSTS ........................................................................... 11 TABLE 2: FY 2020-21 SUMMARY COST ESTIMATE .................................................................. 22 4.2.f Packet Pg. 327 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 5 INTRODUCTION OVERVIEW The City of Diamond Bar (the “City”) services and maintains mini-parks, slopes and open space areas and other improvements (“Improvements”) in the Diamond Bar High Country area of the City. In order to fund the maintenance and operation (“Services”) of these projects and improvements, Landscaping Assessment District No. 41 (“District”) was formed in 1985 by the County of Los Angeles prior to the incorporation of the City of Diamond Bar. Upon incorporation in 1989, the City assumed jurisdiction over the District. This Engineer’s Report ("Report") was prepared to establish the budget for the Improvements (as described below) that will be funded by the 2020-21 assessments and other revenue, and to determine the general and special benefits received from the Improvements by property within the District and the method of assessment apportionment to lots and parcels. This Report and the assessments have been made pursuant to the Landscaping and Lighting Act of 1972, Part 2 of Division 15 of the California Streets and Highways Code (the "Act") and Article XIIID of the California Constitution (the “Article”). ENGINEER’S REPORT AND CONTINUATION OF ASSESSMENTS The assessments have been continued for 30 years. In each subsequent year for which the assessments will be continued, the Diamond Bar City Council (the “Council”) must direct the preparation of an Engineer’s Report, budgets, and proposed assessments for the upcoming fiscal year. After the report is completed, the City Council may preliminarily approve the Engineer’s Report and the continued assessments and establish the date for a public hearing on the continuation of the assessments. Accordingly, this Engineer’s Report (the “Report”) was prepared pursuant to the direction of the City Council. As required by the Act, this Report includes plans and specifications, a diagram or map of the District, the benefits received by property from the Improvements within the District, and the method of assessment apportionment to lots and parcels within the District. If the Council approves this Engineer’s Report and the continuation of the Assessments by resolution, a notice of public hearing must be published in a local newspaper at least 10 days prior to the date of the public hearing. The resolution preliminarily approving the Engineer’s Report and establishing the date for a public hearing is typically used for this notice. Following the minimum 10-day time period after publishing the notice, a public hearing is held for the purpose of allowing public testimony about the proposed continuation of the Assessments. This hearing is currently scheduled for July 21, 2020. At this hearing, the Council will consider approval of a resolution confirming the continuation of the Assessments for fiscal year 2020-21. If so confirmed and approved, the Assessments would be submitted to the Los Angeles County Auditor/Controller for inclusion on the property tax rolls for fiscal year 2020-21. 4.2.f Packet Pg. 328 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 6 Beginning in 2015, SCI Consulting Group became the Assessment Engineer for the District. To maintain an accurate reference and legally defensible record of the District, pertinent language used in previous engineer’s reports has been retained herein and is cited in italics as appropriate. LEGISLATIVE ANALYSIS PROPOSITION 218 The Right to Vote on Taxes Act was approved by the voters of California on November 6, 1996 and is now Article XIIIC and XIIID of the California Constitution. Proposition 218 provides for benefit assessments to be levied to fund the cost of providing services and improvements, as well as maintenance and operation expenses to a public improve ment which benefits the assessed property. SILICON VALLEY TAXPAYERS ASSOCIATION, INC. V SANTA CLARA COUNTY OPEN SPACE AUTHORITY (2008) 44 CAL. 4TH 431 In July of 2008, the California Supreme Court issued its ruling on the Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority (“SVTA”). This ruling is significant in that the Court clarified how Proposition 218 made changes to the determination of special benefit. The Court also found that: ➢ Benefit assessments are for special, not general, benefit ➢ The services and/or improvements funded by assessments must be clearly defined ➢ Special benefits are directly received by and provide a direct advantage to property in the Improvement District ➢ The assessment paid by property should be proportional to the special benefits it receives from the Improvements This Engineer’s Report and the process used to establish the continuation of the assessments for fiscal year 2020-21 are consistent with the SVTA decision and with the requirements of Article XIIIC and XIIID of the California Constitution based on the following factors: 1. The District is drawn to include the entire City; although only parcels deriving special benefits are included in the assessment rolls. Thus, zones of benefit are not required, and the assessment revenue derived from real property in the District is expended only on the Improvements in the District. 2. The Improvements which are constructed and maintained with assessment proceeds in the District are located in close proximity to the real property subject to the assessment. The Improvements provide landscaping and other services to the residents of such assessed property. The proximity of the Improvements to the assessed parcels provides 4.2.f Packet Pg. 329 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 7 a special benefit to the parcel being assessed pursuant to the factors outlined by the Supreme Court in that decision. 3. Due to their proximity to the assessed parcels, the Improvements financed with assessment revenues in the District benefit the properties in that District in a manner different in kind from the benefit that other parcels of real property in the City derive from such Improvements, and the benefits conferred on such property in the District are more extensive than a general increase in property values. 4. The assessments paid in the District are proportional to the special benefit that each parcel within that Assessment District receives from the Improvements because: a. The specific landscaping Improvements and maintenance and utility costs thereof in the District are specified in this Report; and b. Such Improvement and maintenance costs in the District are allocated among different types of property located within the District, and equally among those properties which have similar characteristics, such as single-family residential parcels, multi-family residential parcels, commercial parcels, industrial parcels, etc. DAHMS V. DOWNTOWN POMONA PROPERTY (2009) 174 CAL. APP. 4TH 708 In Dahms v. Downtown Pomona Property (“Dahms”) the Court upheld an assessment that was 100% special benefit (i.e. 0% general benefit) on the rationale that the services and improvements funded by the assessments were directly provided to proper ty in the assessment district. The Court also upheld discounts and exemptions from the assessment for certain properties. BONANDER V. TOWN OF TIBURON (2009) 180 CAL. APP. 4TH 103 Bonander v. Town of Tiburon (“Bonander”), the 1st District Court of Appeal overturned a benefit assessment approved by property owners to pay for placing overhead utility lines underground in an area of the Town of Tiburon. The Court invalidated the assessments primarily on the grounds that the assessments had been apportioned to assessed property based on the costs within sub-areas of the assessment district instead of the overall cost of the improvements and the overall proportional special benefits. BEUTZ V. COUNTY OF RIVERSIDE (2010) 184 CAL. APP. 4TH 1516 Steven Beutz v. County of Riverside (“Beutz”) the Court overturned an assessment for park maintenance in Wildomar, California, primarily because the general benefits associated with improvements and services were not explicitly calculated, quantified and separated from the special benefits. 4.2.f Packet Pg. 330 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 8 GOLDEN HILL NEIGHBORHOOD ASSOCIATION V. CITY OF SAN DIEGO (2011) 199 CAL. APP. 4TH 416 On September 22, 2011, the San Diego Court of Appeal issued a decision on the Golden Hill Neighborhood Association v. City of San Diego appeal. This decision overturned an assessment for street and landscaping maintenance in the Greater Golden Hill neighborhood of San Diego, California. The court described two primary reasons for its decision. First, like in Beutz, the court found the general benefits associated with services were not explicitly calculated, quantified and separated from the special benefits. Second, the court found that the City had failed to record the basis for the assessment on its own parcels. COMPLIANCE WITH CURRENT LAW This Engineer’s Report is consistent with the SVTA decision and with the requirements of Article XIIIC and XIIID of the California Constitution because the Improvements to be funded are clearly defined; the benefiting property in the District enjoys close and unique proximity, access and views to the Improvements; the Improvements serve as an extension of usable land area for benefiting properties in the District and such special benefits provide a direct advantage to property in the District that is not enjoyed by the public at large or other property. This Engineer’s Report is consistent with Beutz, Dahms and Greater Golden Hill because the Improvements will directly benefit property in the District and the general benefits have been explicitly calculated and quantified and excluded from the Assessments. The Engineer’s Report is consistent with Bonander because the Assessments have been apportioned based on the overall cost of the Improvements and Services proportional special benefit to each property, rather than the proportional cost to the District to provide the Improvements to specific properties. 4.2.f Packet Pg. 331 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 9 PLANS & SPECIFICATIONS The City maintains landscaping and other improvements in locations within the District’s boundaries. The work and improvements to be undertaken by Landscaping Assessment District No. 41, (“District”), and the cost thereof paid from the levy of the annual Assessment provide special benefit to Assessor Parcels within the District as defined in the Method of Assessment herein. In addition to the definitions provided by the Landscaping and Lighting Act of 1972 (the “Act”), the work and improvements are generally described as mini-parks, slopes and open space areas within the District. The Assessment Diagram shows the location and extent of the Improvements to be installed, maintained or serviced by the proceeds from this Assessment District. Installation, maintenance and servicing of Improvements, may include, but are not limited to, turf and play areas, landscaping, ground cover, shrubs and trees, irrigation systems, sidewalks, lighting, fencing, graffiti removal and repainting, and labor, materials, supplies, utilities and equipment, as applicable, at each of the locations owned, operated or maintained by the District. As applied herein, “Installation” means the construction of Improvements, including, but not limited to, land preparation (such as grading, leveling, cutting and filling), sod, landscaping, irrigation systems, walkways and drainage, lights, playground equipment, play courts, playing fields, recreational facilities and public restrooms. “Maintenance” means the furnishing of services and materials for the ordinary and usual maintenance, operation and servicing of any improvement, including repair, removal or replacement of all or any part of any improvement; providing for the life, growth, health, and beauty of landscaping, including cultivation, irrigation, trimming, spraying, fertilizing, or treating for disease or injury; the removal of trimmings, rubbish, debris, and other solid waste, and the cleaning, sandblasting, and painting of walls and other improvements to remove or cover graffiti. “Servicing” means the furnishing of electric current, or energy, gas or other illuminating agent for any public lighting facilities or for the lighting or operation of any other improvements; or water for the irrigation of any landscaping, the operation of any fountains, or the maintenance of any other improvements. Incidental expenses include all of the following: (a) The costs of preparation of the report, including plans, specifications, estimates, diagram, and assessment; (b) the costs of printing, advertising, and the giving of published, posted, and mailed notices; (c) compensation payable to the County for collection of assessments; (d) compensation of any engineer or attorney employed to render services in proceedings pursuant to this part; (e) any other expenses incidental to the construction, installation, or maintenance and servicing of the Improvements; (f) any expenses incidental to the issuance of bonds or notes pursuant 4.2.f Packet Pg. 332 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 10 to Streets & Highways Code Section 22662.5; and (g) costs associated with any elections held for the approval of a new or increased assessment (Streets & Highways Code §22526). Modifications to the District structure could include, but are not limited to, substantial changes or expansion of the Improvements provided, substantial changes in the service provided, modifications or restructuring of the District including annexation or detachment of specific parcels, revisions in the method of apportionment, or proposed new or increased assessments. The assessment proceeds will be exclusively used for Improvements within the District plus incidental expenses. 4.2.f Packet Pg. 333 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 11 FISCAL YEAR 2020-21 ESTIMATE OF COST AND BUDGET BUDGET FOR FISCAL YEAR 2020-21 The 1972 Act provides that the total costs for providing the maintenance and servicing of the District Improvements and facilities can be recovered in the assessment spread including incidental expenses. The latter can include engineering fees, legal fees, printing, mailing, postage, publishing and all other costs identified with the District proceedings. An estimate of District costs for fiscal year 2020-21 for the maintenance and servicing of the Improvements is provided below. TABLE 1: FY 2020-21 ESTIMATE OF COSTS A. The Act requires that proceeds from the assessments must be deposited into a special fund that has been set up for the revenues and expenditures of the District. Moreover, funds raised by the assessment shall be used only for the purposes stated within this Report. Any balance remaining at the end of the Fiscal Year, June 30, must be carried over to the next Fiscal Year. The District may also establish a reserve fund for contingencies and special projects as well as a capital improvement fund for accumulating funds for larger capital improvement projects or capital renovation needs. Any remaining balance would either be placed in the reserve fund or would be used to reduce future years' assessments. Expenditure Item Salaries & Benefits 24,504$ Operating Expenses Advertising 5,000$ Utilities 90,000$ Maintenance of Grounds/Buildings 17,672$ Professional Services 5,640$ Contract Services Trails Maintenance 59,100$ Tree Maintenance 6,500$ Weed/Pest Abatement 56,565$ Estimated Expenditures 264,981$ Revenue Item Direct Benefit Assessments 122,157$ General Fund Contribution 142,824$ Estimated Revenues 264,981$ Budget Allocation to Parcels Total Assessment Budget A 122,157$ Total Assessable Parcels 554 Assessment per Parcel 220.50$ 4.2.f Packet Pg. 334 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 12 METHOD OF ASSESSMENT APPORTIONMENT METHOD OF APPORTIONMENT This section of the Engineer's Report explains the benefits to be derived from the Improvements and the methodology used to apportion the total assessment to properties within the District. The District consists of certain assessor parcels within the boundaries as defined by the Assessment Diagram referenced in this report and the parcels identified by the Assessor Parcel Numbers listed with the levy roll. The parcel list includes all privately and publicly owned parcels as shown. The method used for apportioning the Assessment is based upon the relative special benefits to be derived by the properties in the District over and above general benefits conferred on real property or to the public at large. The Assessment is apportioned to lots and parcels in proportion to the relative special benefit from the Improvements. The apportionment of special benefit is a two -step process: the first step is to identify the types of special benefit arising from the Improvements and the second step is to allocate the Assessments to property based on the estimated relative special benefit for each type of property. DISCUSSION OF BENEFIT In summary, the Assessments can only be levied based on the special benefit to pro perty. This benefit is received by property over and above any general benefits. With reference to the requirements for assessments, Section 22573 of the Landscaping and Lighting Act of 1972 states: "The net amount to be assessed upon lands within an assessment district may be apportioned by any formula or method which fairly distributes the net amount among all assessable lots or parcels in proportion to the estimated benefits to be received by each such lot or parcel from the improvements." Proposition 218, as codified in Article XIIID of the California Constitution, has confirmed that assessments must be based on the special benefit to property and that the value of the special benefits must exceed the cost of the assessment: "No assessment shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel." The following benefit categories summarize the types of special benefit to residential, commercial, industrial and other lots and parcels resulting from the Improvements to be provided with the assessment proceeds. These types of special benefit are summarized as follows: 4.2.f Packet Pg. 335 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 13 A. Proximity to Improved Landscaped Areas and Other Public Improvements within the District. B. Access to Improved landscaped areas and Other Public Improvements within the District. C. Improved Views within the District. D. Extension of a property’s outdoor areas and green spaces for properties within close proximity to the Improvements. E. Safety and Security within the District F. Creation of individual lots for residential and commercial use that, in absence of the Assessments, would not have been created. In this case, the recent SVTA v. SCCOSA decision provides enhanced clarity to the definitions of special benefits to properties from similar improvements in three distinct areas: ➢ Proximity ➢ Expanded or improved access ➢ Views The SVTA v. SCCOSA decision also clarifies that a special benefit is a service or improvement that provides a direct advantage to a parcel and that ind irect or derivative advantages resulting from the overall public benefits from a service or improvement are general benefits. The SVTA v. SCCOSA decision also provides specific guidance that park improvements are a direct advantage and special benefit to property that is proximate to a park that is improved by an assessment: The characterization of a benefit may depend on whether the parcel receives a direct advantage from the improvement (e.g. proximity to a park) or receives an indirect, derivative advantage resulting from the overall public benefits of the improvement (e.g. general enhancement of the district’s property values). Proximity, improved access and views, in addition to the other special benefits listed herein further strengthen the basis of these assessments. Moreover, the Dahms decision further clarified that certain services and improvements funded by assessments, that are over and above what otherwise would be provided and that other property in general and the public do not share or rec eive are 100% special benefit. The assessment-funded services upheld by Dahms included streetscape maintenance and security services. SPECIAL BENEFIT The District was formed by a different engineer of record. From the original Engineer’s Report, the primary special benefits on landscaping are as set forth below: 4.2.f Packet Pg. 336 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 14 1. Beautification of the streets which are used by all the residents in Diamond Bar. 2. A sense of community pride resulting from well-maintained green spaces. 3. The enhancement of the value of property which results from the foregoing benefits. 4. The enhancement of the value of property which results from the foregoing benefits.1 In addition, SCI assessment engineers have identified the following special benefits: PROXIMITY TO IMPROVED LANDSCAPED AREAS WITHIN THE DISTRICT Only the specific properties within close proximity to the Improvements are included in the District. The District has been narrowly drawn to include the properties that receive special benefits from the Improvements. Therefore, property in the District enjoys unique and valuable proximity and access to the Improvements that the public at large and property outside the District do not share. In absence of the Assessments, the Improvements would not be provided , and the public improvements funded in the District would be degraded due to insufficient funding for maintenance, upkeep and repair. Therefore, the Assessments provide Improvements that are over and above what otherwise would be provided. Improvements that are over and above what otherwise would be provided do not by themselves translate into special benefits but when combined with the unique proximity and access enjoyed by parcels in the District, they provide a direct advantage and special benefit to property in the District. ACCESS TO IMPROVED LANDSCAPED AREAS WITHIN THE DISTRICT Since the parcels in the District are nearly the only parcels that enjoy close access to the Improvements, they directly benefit from the unique close access to improved landscaping areas and other public improvements that are provided by the Assessments. This is a direct advantage and special benefit to property in the District. IMPROVED VIEWS WITHIN THE ASSESSMENT DISTRICT The City, by maintaining permanent public improvements funded by the Assessments in the District, provides improved views to properties in the District. The properties in the District enjoy close and unique proximity, access and views of the specific Improvements funded in the District; therefore, the improved and protected views provided by the Assessments are another direct and tangible advantage that is uniquely conferred upon property in the District. 1 From the Engineer’s Report, Update of Assessment District No. 41, Fiscal Year 2014-15, City of Diamond Bar, dated June 3, 2014 4.2.f Packet Pg. 337 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 15 EXTENSION OF A PROPERTY’S OUTDOOR AREAS AND GREEN SPACES FOR PROPERTIES WITHIN CLOSE PROXIMITY TO THE IMPROVEMENTS In large part because it is cost prohibitive to provide large open land areas on property in the District, the residential, commercial and other benefiting properties in the District do not have large outdoor areas and green spaces. The Improvements within the District provide additional outdoor areas that serve as an effective extension of the land area for proximate properties because the Improvements are uniquely proximate and accessible to property in close proximity to the Improvements. The Improvements, therefore, provide an important, valuable and desirable extension of usable land area for the direct advantage and special benefit of properties in the District because such properties have uniquely good and close proximity to the Improvements. SAFETY AND SECURITY WITHIN THE ASSESSMENT DISTRICT The City, through proper installation, maintenance and servicing of permanent public improvements funded by the Assessments in the District, provides increased security and safety by preventing crime and suppressing fire. For parks and recreation Improvements, proper lighting and well-kept landscapes help to deter crime and vandalism. Other landscaped area activities such as slope maintenance and brush clearing provide critical fire suppression. CREATION OF INDIVIDUAL LOTS FOR RESIDENTIAL AND COMMERCIAL USE THAT, IN ABSENCE OF THE ASSESSMENTS, WOULD NOT HAVE BEEN CREATED In most of the District, the original owner/developer(s) of the property within the District agreed unanimously to the Assessments. The Assessments provide the necessary funding for public improvements that were required as a condition of development and subdivision approval. Therefore, such Assessments allowed the original property to be subdivided and for development of the parcels to occur. As parcels were sold, new owners were informed of the Assessments through the title reports, and in some cases, through Department of Real Estate “White Paper” reports that the parcels were subject to assessment. Purchase of property was also an “agreement” to pay the Assessment. Therefore, in absence of the Assessments, the lots within most of the District would not have been created. These parcels, and the improvements that were constructed on the parcels, receive direct advantage and special benefit from the Assessments. GENERAL VERSUS SPECIAL BENEFIT Article XIIIC of the California Constitution requires any local agency proposing to increase or impose a benefit assessment to “separate the general benefits from the special benefits conferred on a parcel.” The rationale for separating special and general benefits is to ensure that property owners subject to the benefit assessment are not paying for general benefits. An assessment can fund special benefits but cannot fund general benefits. Accordingly, a separate estimate of the special and general benefit is given in this section. 4.2.f Packet Pg. 338 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 16 In other words: There is no widely-accepted or statutory formula for general benefit. General benefits are benefits from improvements or services that are not special in nature, are not “particular and distinct” and are not “over and above” benefits received by other properties. SVTA vs. SCCOSA provides some clarification by indicating that general benefits provide “an indirect, derivative advantage” and are not necessarily proximate to the improvements. In this Report, the general benefit is liberally estimated and described, and then budgeted so that it is funded by sources other than the Assessment. The starting point for evaluating general and special benefits is the current, baseline level of service. The Assessment will fund Improvements “over and above” this general, baseline level and the general benefits estimated in this section are over and above the baseline. A formula to estimate the general benefit is listed below: General Benefit = Benefit to Real Property Outside the Assessment District + Benefit to Real Property Inside the Assessment District that is Indirect and Derivative + Benefit to the Public at Large Special benefit, on the other hand, is defined in the state constitution as “a particular and distinct benefit over and above general benefits conferred on real property located in the district or to the public at large.” The SVTA v. SCCOSA decision indicates tha t a special benefit is conferred to a property if it “receives a direct advantage from the improvement (e.g., proximity to a park).” In these Assessments, as noted, properties in the District have close and unique proximity, views and access to the Improvements and uniquely improved desirability from the Improvements and other properties and the public at large do not receive significant benefits because they do not have proximity, access or views of the Improvements. Therefore, the overwhelming proportion of the benefits conferred to property is special and is only minimally received by property outside the Districts or the public at large. Total Benefit = General Benefit + Special Benefit 4.2.f Packet Pg. 339 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 17 BENEFIT FINDING QUANTIFICATION OF GENERAL BENEFIT In this section, the general benefit from landscaping and other types of Improvements is liberally estimated and described, and then budgeted so that it is funded by sources other than the Assessment. BENEFIT TO PROPERTY OUTSIDE THE ASSESSMENT DISTRICTS Properties within the District receive almost all of the special benefits from the Improvements because properties in the District enjoy unique close proximity and access to the Improvements that is not enjoyed by other properties or the public at large. However, certain properties within the proximity/access radius of the Improvements, but outside of the boundaries of the District, may receive some benefit from the Improvements. Since this benefit is conferred to properties outside the District boundaries, it contributes to the overall general benefit calculation and will not be funded by the Assessments. The general benefit to property outside of the District is calculated with the parcel and data analysis performed by SCI Consulting Group. Since certain properties outside the District enjoy close proximity and access to the Improvements cannot be assessed by the District, this is a form of general benefit to other property. There are 23 parcels outside the District that are directly adjacent to areas where slopes are maintained by the District. The benefits conferred to these properties do not include the Lot Creation benefit factor, therefore the benefit is reduced by half. The general benefit to property outside of the District is calculated as follows. 23 Parcels Outside District 554 Parcels In the District 50%Benefit Factor 23 23 +554 Assumptions: Calculation: General Benefit to Property Ouside the District x 50%=1.99% BENEFIT TO PROPERTY INSIDE THE ASSESSMENT DISTRICTS THAT IS INDIRECT AND DERIVATIVE The “indirect and derivative” benefit to property within the District is particularly difficult to calculate. A solid argument can be presented that all benefit within the District is special, because the other Improvements are clearly “over and above” and “particular and distinct” when compared with the baseline level of service and the unique proximity, access and views of the other Improvements enjoyed by benefiting properties in the District. 4.2.f Packet Pg. 340 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 18 Nevertheless, the SVTA vs. SCCOSA decision indicates there may be general benefit “conferred on real property located in the district” A measure of the general benefits to property within the Assessment area is the percentage of land area within or directly abutting the District that is publicly owned and used for regional purposes such as regional parks, major roads, rail lines and other regional facilities because such properties used for regional purposes could provide indirect benefits to the public at large. The District boundaries are narrowly drawn to include only the residential areas within the neighborhood, and there are no regional facilities within the District. Therefore, the indirect and derivative general benefits to property within the District are zero. BENEFIT TO THE PUBLIC AT LARGE The general benefit to the public at large can be estimated by the proportionate amount of time that the District’s Improvements are used and enjoyed by individuals who are not residents, employees, customers or property owners in the District. It should be noted that these Improvements do not attract the public at large in the same was as park improvements , and they confer far less benefit to the public at large than do similar park improvements. In essence, the public does not visit an area to enjoy slope improvements in the same way as they may visit a park. However, certain slopes maintained by the District may provide some enhancement to views enjoyed by the public as they drive past. Approximately 25% of the slopes and linear green areas maintained by the District lie along arterial roadways that carry a high percentage of traffic not associated with people who are not residents or property owners within the District. While there are not statistics available as to what percentage of pass-by vehicle trips are by non-residents or non-property owners, a liberal factor of 90% is assumed. Finally, of all the types of benefits conferred by the Improvements, passersby only benefit from views, which are estimated at 10% of the total benefits. Therefore, we find that ((90% of 25%) x 10% =) 2.25% of the benefits from the Improvements are general benefits to the public at large. TOTAL GENERAL BENEFITS Using a sum of these three measures of general benefit, we find that approximately of the benefits conferred by the Improvements may be general in nature and should be funded by sources other than the assessment. Outside the District Inside the District Public At Large Total General Benefit Landscaping General Benefit Calculation 1.99% 0.00% 2.25% 4.24% Although this analysis finds that 4.24% of the assessment may provide general benefits from the Improvements, the Assessment Engineer establishes a requirement for a minimum contribution from sources other than the assessments of 5%. This minimum contribution 4.2.f Packet Pg. 341 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 19 above the measure of general benefits will serve to provide additional coverage for any other general benefits. CURRENT GENERAL BENEFIT CONTRIBUTION FROM THE CITY This general benefit cannot be funded from the Assessments; it must be funded from other sources such as the City’s General Fund or other non-District funds. These contributions can also be in the form of in-lieu contributions to the installation and maintenance of the Improvements such as other City assets that support and protect the Improvements. The City of Diamond Bar will contribute both monetary and in-lieu resources to ensure that the general benefits conferred by the proposed Improvements are not funded by the District’s Assessments. A summary and quantification of these other contributions from the City is discussed below: The City of Diamond Bar owns, maintains, rehabilitates and replaces curb and gutter along the border of the District Improvements. This curb and gutter serves to support, contain, retain, manage irrigation flow and growth, and provide a boundary for the Improvements. The contribution from the City towards general benefit from the maintenance, rehabilitation, and replacement of the curb and gutter is conservatively estimated to be 5%. The City owns and maintains a storm drainage system along the border of the District Improvements. This system serves to prevent flooding and associated damage to the Improvements, and manage urban runoff including local pollutants loading from the Improvements. The contribution from the City towards general benefit from the maintenance, and operation of the local storm drainage system is conservatively estimated to be 5%. The City owns and maintains local public streets along the border of the District Improvements. These public streets provide access to the Improvements for its enjoyment as well as efficient maintenance. The contribution from the City towards general benefit from the maintenance of local public streets is conservatively estimated to be 5%. The value of the construction of the improvements can be quantified and monetized as an annuity. Since this construction was performed and paid for by non-assessment funds, this “annuity” can be used to offset general benefit costs and is conservatively estimated to contribute 10%. The total General Benefit is liberally quantified at 8% which is entirely offset by the conservatively quantified total non-assessment contribution towards general benefit described above of 25%. Therefore, no additional General Benefit must be funded by the City. METHOD OF APPORTIONMENT The development of an Assessment methodology requires apportioning to determine the relative special benefit for each property. As the District was formed by a different engineer of record, the precise language from the most recent Engineer’s Report is included below: 4.2.f Packet Pg. 342 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 20 The net amount to be assessed upon lands within the District in accordance with this report is apportioned by a formula and method which fairly distributes the amount among all assessable lots or parcels in proportion to the estimated benefits to be received by each lot or parcel from the Improvements, namely the maintenance and servicing of public landscaping improvements within such District. The maintenance and servicing of public landscaping improvements installed and constructed in public places in the City of Diamond Bar provides a special benefit which is received by each and every lot or parcel within the District, tending to enhance their value. The primary benefits on landscaping are as set forth below: 1. Beautification of the streets which are used by all the residents in Diamond Bar. 2. Public parks which can be utilized and enjoyed by all residents within the District. 3. A sense of community pride resulting from well-maintained green spaces. 4. The enhancement of the value of property which results from the foregoing benefits. The existing land use information indicates that all of the parcels within the District are residences. Because the special benefits derived apply equally to all residents and parcels, it has been determined that all assessable parcels would receive the same net assessment.2 ANNUAL ASSESSMENT CALCULATION For fiscal year 2020-21 the amount of Assessments for the District is not increased from prior years. The assessment per parcel is $220.50. DURATION OF ASSESSMENT The District was formed or annexed in previous years. It is proposed that the Assessments be continued every year after their formation or annexation, so long as the public Improvements need to be maintained and improved, and the City requires funding from the Assessments for these Improvements in the District. As noted previously, the Assessment can continue to be levied annually after the City Council approves an annually updated Engineer’s Report, budget for the Assessment, Improvements to be provided, and other specifics of the Assessment. In addition, the City Council must hold an annual public hearing to continue the Assessment. 2 From the Engineer’s Report, Update of Assessment District No. 41, Fiscal Year 2014-15, City of Diamond Bar, dated June 3, 2014 4.2.f Packet Pg. 343 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 21 APPEALS OF ASSESSMENTS LEVIED TO PROPERTY Any property owner who feels that the Assessment levied on the subject property is in error as a result of incorrect information being used to apply the foregoing method of assessment may file a written appeal with the City of Diamond Bar City Manager or his or her designee. Any such appeal is limited to correction of an Assessment during the then-current Fiscal Year and applicable law. Upon the filing of any such appeal, the City Manager or his or her designee will promptly review the appeal and any information provided by the property owner. If the City Manager or his or her designee finds that the Assessment should be modified, the appropriate changes shall be made to the Assessment Roll. If any such changes are approved after the Assessment Roll has been filed with the County for collection, the City Manager or his or her designee is authorized to refund to the property owner the amount of any approved reduction. Any dispute over the decision of the City Manager or his or her designee shall be referred to the Diamond Bar City Council, and the decision of the City Council shall be final. ASSESSMENT FUNDS MUST BE EXPENDED WITHIN THE DISTRICT AREA The net available Assessment funds, after incidental, administrative, financing and other costs shall be expended exclusively for Improvements within the boundaries of the District or as described herein, and appropriate incidental and administrative costs as defined in the Plans and Specifications section. 4.2.f Packet Pg. 344 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 22 ASSESSMENT WHEREAS, the City of Diamond Bar directed the undersigned engineer of Work to prepare and file a report presenting an estimate of costs, a Diagram for the District and an assessment of the estimated costs of the Improvements upon all assessable parcels within the District; NOW, THEREFORE, the undersigned, by virtue of the power vested in me under the Act, Article XIIID of the California Constitution, and the order of the City of Diamond Bar City Council, hereby makes the following Assessment to cover the portion of the estimated cost of the Improvements, and the costs and expenses incidental thereto to be paid by the District. The amount to be paid for said Improvements and the expense incidental thereto, to be paid by the District for the Fiscal Year 2020-21 is generally as follows: TABLE 2: FY 2020-21 SUMMARY COST ESTIMATE As required by the Act, an Assessment Diagram of the District is hereto attached and incorporated herein by reference. The distinctive number of each parcel or lot of land in the District is its Assessor Parcel Number appearing on the Assessment Roll. I do hereby assess and apportion the net amount of the cost and expenses of the Improvements, including the costs and expenses incident thereto, upon the parcels and lots of land within the District, in accordance with the special benefits to be received by each parcel or lot, from the Improvements, and more particularly set forth in the Estimate of Cost and Method of Assessment in the Report. The Assessment is made upon the parcels or lots of land within the District in proportion to the special benefits to be received by the parcels or lots of land, from the Improvements. Each parcel or lot of land is described in the Assessment Roll by reference to its parcel number as shown on the Assessor's Maps of the County of Los Angeles for the Fiscal Year 2020-21. For a more particular description of the property, reference is hereby made to the deeds and maps on file and of record in the office of the County Recorder of the County. Salaries & Benefits 24,504$ Operating Expenses & Services 240,477$ Total for Services 264,981$ Less General Fund Contribution (142,824)$ Net Amount to Assessments 122,157$ 4.2.f Packet Pg. 345 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 23 I hereby will place opposite the Assessor Parcel Number for each parcel or lot within the Assessment Roll, the amount of the assessment for the Fiscal Year 2020-21 for each parcel or lot of land within the District. Dated: June 29, 2020 Engineer of Work By_____________________________ Jerry Bradshaw, License No. C48845 4.2.f Packet Pg. 346 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 24 ASSESSMENT DIAGRAM The District boundary and the parcels to be assessed in Landscaping Assessment District No. 39 are shown on the Assessment Diagram, which is on file with the City Clerk of the City of Diamond Bar and includes all those properties included in the original formation of the District and subsequent annexations. The following Assessment Diagram is for general location only and is not to be considered the official boundary map. The lines and dimensions of each lot or parcel within the District are those lines and dimensions as shown on the maps of the Assessor of the County of Los Angeles, for Fiscal Year 2020-21, and are incorporated herein by reference, and made a part of this Diagram and this Report. 4.2.f Packet Pg. 347 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 25 4.2.f Packet Pg. 348 CITY OF DIAMOND BAR LANDSCAPING ASSESSMENT DISTRICT NO. 41 ENGINEER’S REPORT, FISCAL YEAR 2020-21 PAGE 26 ASSESSMENT ROLL An Assessment Roll (a listing of all parcels assessed within the District and the amount of the Assessment) will be filed with the City Clerk and is, by reference, made part of this Report and is available for public inspection during normal office hours at the City Hall at 21810 Copley Drive, 2nd floor, Diamond Bar, California 91765. Each lot or parcel listed on the Assessment Roll is shown and illustrated on the latest County Assessor records and these records are, by reference, made part of this Report. These records shall govern for all details concerning the description of the lots or parcels. 4.2.f Packet Pg. 349 Agenda #: 5.1 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: RESOLUTIONS FOR THE SUBMISSION TO THE VOTERS A QUESTION RELATING TO TRANSACTIONS AND USE TAX AND SETTING PRIORITIES FOR FILING OF WRITTEN ARGUMENT REGARDING A CITY COUNCIL-INITIATED TRANSACTIONS AND USE TAX MEASURE AND DIRECTING THE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS. STRATEGIC GOAL: Responsible Stewardship of Public Resources RECOMMENDATION: A. Adopt Resolution No. 2020-35 for the submission to the voters a question relating to Transactions and Use Tax; and B. Adopt Resolution No. 2020-36 setting deadlines and priorities for filing written arguments regarding the City Council-initiated Transactions and Use Tax Measure and directing the City Attorney to prepare an impartial analysis. FINANCIAL IMPACT: The cost to consolidate the General Municipal Election and Transaction and Use Tax Measure is estimated at approximately $144,000 and is included in the adopted Fiscal Year 2020-21 Budget. Should the measure pass, it is estimated that revenues would increase by approximately $3,800,000 annually. BACKGROUND: At the City Council meeting of July 7, 2020, the Diamond Bar City Council adopted Resolution No. 2020-23 calling the General Municipal Election to be held on November 3, 2020 for the election of two (2) Members of the City Council, and requesting approval from the Board of Supervisors of the County of Los Angeles to consolidate the General Municipal Election with the Statewide General Election. In multiple study sessions during the past year, the City Council directed staff to begin 5.1 Packet Pg. 350 preparing to place a local general-purpose Transactions and Use Tax (TUT) on the November 3, 2020 ballot for voter consideration. As proposed, the TUT measure would add three-quarters of one percent to the local sales tax rate, increasing the local rate from 9.5% to 10.25%. It would also establish a complementary three-quarters of one percent local use tax to be imposed on goods purchased in an outside jurisdiction but consumed and/or stored in Diamond Bar. TUT revenues may be appropriated for use at the City Council’s discretion for essential services such as street maintenance and public safety and City services such as parks and recreation. To officially place the measure before the voters, the City Council must adopt a resolution submitting the measure to voters for consideration with a minimum two-thirds vote (Attachment 1). The measure would pass with a simple majority (50% plus one) vote of the electorate. If passed by the voters, Chapter 3.14 would be added to Title 3 of the Diamond Bar Municipal Code, establishing a local three-quarter percent General Transactions and Use Tax. If the resolution submitting the measure to voters is passed with a two-thirds vote, the Council must also pass a resolution setting deadlines and priorities for filing written arguments regarding the measure (Attachment 2). DISCUSSION: The attached resolution adheres to the requirements set forth in the Elections Code for the November 3, 2020 General Municipal Election and includes the purpose of the election (two City Council seats and the measure), the ballot measure text and ordinance, and the vote requirement for measure passage (50% plus one). It also establishes the deadline for written arguments in favor of and against the proposed measure, establishes the order of priority for the selection of written arguments in the event the City Clerk receives more than one, and directs the City Attorney to draft an impartial analysis of the proposed measure. The proposed resolution authorizes Mayor Tye and Mayor Pro Tem Lyons to file a single written argument not exceeding 300 words in favor of the measure, but can be modified based on direction from the City Council. The resolution establishes that written arguments in favor of and against the measure and the City Attorney’s impartial analysis are due to the City Clerk on August 14, 2020 no later than 5:00 p.m. LEGAL REVIEW: This report and the attached resolutions have been reviewed and approved by the City Attorney. PREPARED BY: 5.1 Packet Pg. 351 REVIEWED BY: Attachments: 1. 5.1.a Resolution No. 2020-35 - Question Relating to Transactions and Use Tax. 2. 5.1.b Resolution No. 2020-36 - Priorities for Filing of Written Argument 5.1 Packet Pg. 352 RESOLUTION NO. 2020-35 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR, CALIFORNIA FOR THE SUBMISSION TO THE VOTERS A QUESTION RELATING TO TRANSACTIONS AND USE TAX. WHEREAS, pursuant to Resolution No. 2020-23, the City Council called a General Municipal Election to be held in the City of Diamond Bar, California on November 3, 2020, for the election of two (2) Members of the City Council for full four (4) year terms; and WHEREAS, pursuant to Resolution No. 2020-23, adopted on July 7, 2020, the City Council requested that the General Municipal Election for election of Members of the City Council be consolidated with the Statewide General Election to be held on Tuesday, November 3, 2020; and WHEREAS, the City Council desires to submit to the voters at the same General Municipal Election a question relating to the Transaction and Use Tax. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DIAMOND BAR, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: Section 1. That the City Council, pursuant to its right and authority under Elections Code Section 9222 to submit a measure without a petition, does order submitted at and consolidated with the General Municipal Election the following text of the Measure to the voters of the City of Diamond Bar: Section 2. That the vote requirement for the Measure to be adopted is 50%+1 of the votes cast and if adopted the Measure shall go into effect at the time set forth in the Measure. Section 3. That the complete text of the Measure is attached as Exhibit A. Section 4. That the ballots to be used at the election shall be in form and content as required by law. Section 5. That the City Clerk is authorized, instructed and directed to coordinate with the County of Los Angeles Registrar-Recorder/County Clerk to procure and furnish any and all official ballots, notices printed matter and all supplies, equipment Measure to Fund Local Services. Shall the Ordinance to increase the Transactions and Use Tax by ¾ cents providing approximately $3,800,000 annually, with no expiration date to be used for essential city services such as street maintenance and public safety and other city services such as parks and recreation facilities and programs be adopted? Yes No 5.1.a Packet Pg. 353 Resolution No. 2020-35 and paraphernalia that may be necessary in order to properly and lawfully conduct the election. Section 6. That the polls for the election shall be open at seven o'clock a.m. of the day of the election and shall remain open continuously from that time until eight o'clock p.m. of the same day when the polls shall be closed, pursuant to Election Code §10242, except as provided §14401 of the Elections Code of th e State of California. Section 7. That in all particulars not recited in this resolution, the election shall be held and conducted as provided by law for holding municipal elections. Section 8. That notice of the time and place of holding the election is given and the City Clerk is authorized, instructed and directed to give further or additional notice for the election, in time, form and manner as required by law. Section 9. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions. SECTION 10. The City Council authorizes the City Clerk to administer said election and all reasonable and actual election expenses shall be paid by the city upon presentation of a properly submitted bill. PASSED, APPROVED AND ADOPTED THIS 21st day of July, 2020. _____________________________ Steve Tye, Mayor ATTEST: I, Kristina Santana, City Clerk for the City of Diamond Bar, hereby certify that the foregoing resolution, was duly passed, approved and adopted by the City Council of the City of Diamond Bar at a regular meeting held on the 21st day of July, 2020, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ________________________________ Kristina Santana, City Clerk 5.1.a Packet Pg. 354 Resolution No. 2020-35 EXHIBIT A ORDINANCE NO. AN ORDINANCE OF THE CITY OF DIAMOND BAR, CALIFORNIA ADDING CHAPTER 3.14 TO TITLE 3 - REVENUE AND FINANCE OF THE DIAMOND BAR MUNICIPAL CODE TO ESTABLISH A LOCAL THREE-QUARTER PERCENT GENERAL TRANSACTIONS AND USE TAX WHEREAS, a measure to increase the transient occupancy tax was put before the voters at a general municipal election held on November 3, 2020; and WHEREAS, the measure received the requisite votes for adoption. NOW, THEREFORE, the people of the City of Diamond Bar do ordain as follows: SECTION I: Chapter 3.14 entitled “Local Transactions and Use Tax”, is hereby added to the Diamond Bar Municipal Code to provide as follows: “Section 3.14.010. – Short title. This chapter shall be known as the Local Transactions and Use Tax. Section 3.14.020 – Purpose. The City Council hereby declares that this chapter is adopted to achieve the following, among other purposes, and directs that the provisions of this chapter be interpreted in order to accomplish those purposes: (a) To impose a retail transactions and use tax in accordance with the provisions of Part 1.6 (commencing with Section 7251) of Division 2 of the Cal. Revenue and Taxation Code and Section 7285.9 of Part 1.7 of Division 2, which authorizes the City to adopt this chapter which shall be operative if a majority of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose. (b) To adopt a retail transactions and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Cal. Revenue and Taxation Code. (c) To adopt a retail transactions and use tax ordinance that imposes a tax and provides a measure therefore that can be 5.1.a Packet Pg. 355 Resolution No. 2020-35 administered and collected by the California Department of Tax and Fee Administration in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the California Department of Tax and Fee Administration in administering and collecting the California State Sales and Use Taxes. (d) To adopt a retail transactions and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part 1.6 of Division 2 of the Cal. Revenue and Taxation Code, minimize the cost of collecting the transactions and use taxes, and at the same time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this ordinance. Section 3.14.030 – Transactions tax rate. For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of the City at the rate of three-quarters percent (3/4%) of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of this ordinance. Section 3.14.040 – Use tax rate. An excise tax is hereby imposed on the storage, use or other consumption in the City of tangible personal property purchased from any retailer on and after the operative date of this ordinance for storage, use or other consumption in said territory at the rate of three -quarters percent (3/4%) of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax regardless of the place to which delivery is made. Section 3.14.050 – Contract with State. Prior to the operative date, the City shall contract with the California Department of Tax and Fee Administration to perform all functions incident to the administration and operation of this transactions and use tax ordinance; provided, that if the City shall not have contracted with the California Department of Tax and Fee Administration prior to the operative date, it shall nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract. Section 3.14.060 – Place of sale. 5.1.a Packet Pg. 356 Resolution No. 2020-35 For the purposes of this chapter, all retail sales are consummat ed at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the State sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the California Department of Tax and Fee Administration. Section 3.14.070 – Adoption of provisions of State law. Except as otherwise provided in this chapter and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Cal. Revenue and Taxation Code, all of the provisions of Part 1 (commencing with Section 6001) of Division 2 of the Cal. Revenue and Taxation Code are hereby adopted and made a part of this chapter as though fully set forth in this section. Section 3.14.080 – Limitations on adoption of State law. In adopting the provisions of Part 1 of Division 2 of the Cal. Revenue and Taxation Code: (a) Wherever the State of California is named or referred to as the taxing agency, the name of this City shall be substituted therefor. The substitution, however, shall not be made when: (1) The word "State" is used as a part of the title of the State controller, State treasurer, State board of control, State board of equalization, State treasury, State victim compensation and government claims board, or the State Constitution; (2) When the result of that substitution would require action to be taken by or against this City or any agency, officer, or employee thereof rather than by or against the Department of Tax and Fee Administration, in performing the functions incident to the administration or operation of this chapter; (3) In those sections, including, but not necessarily limited to sections referring to the exterior boundaries of the state, where the result of the substitution would be to: (i) provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, 5.1.a Packet Pg. 357 Resolution No. 2020-35 use or other consumption remain subject to tax by the State under the provisions of Part 1 of Division 2 of the Cal. Revenue and Taxation Code; (ii) impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the State under the said provision of that code. (4) In Sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Cal. Revenue and Taxation Code. (b) The word "City" shall be substituted for the word "State" in the phrase "retailer engaged in business in this State" in § 6203 of the Cal. Revenue and Taxation Code and in the definition of that phrase in § 6203. Section 3.14.090 – Permit not required. If a seller's permit has been issued to a retailer under § 6067 of the Cal. Revenue and Taxation Code, an additional seller’s permit shall not be required by this chapter. Section 3.14.100 – Exclusions and exemptions. (a) There shall be excluded from the measure of the transactions tax and the use tax the amount of any sales tax or use tax imposed by the State or by any city, city and county, or county pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law or the amount of any state - administered transactions or use tax. (b) There are exempted from the computation of the amount of transactions tax the gross receipts from: (1) Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the county in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States, or any foreign government. (2) Sales of property to be used outside the City which is shipped to a point outside the City, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this section, delivery to a point outside the City shall be satisfied: (i) With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with § 4000) of Division 3 of the Cal. Vehicle Code, aircraft 5.1.a Packet Pg. 358 Resolution No. 2020-35 licensed in compliance with § 21411 of the Public Utilities Code, and undocumented vessels registered under Division 3.5 (commencing with § 9840) of the Cal. Vehicle Code by registration to an out-of-City address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and (ii) With respect to commercial vehicles, by registration to a place of business out-of-City and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address. (3) The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of this ordinance. (4) A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of this ordinance. (5) For the purposes of paragraphs (b)(3) and (4) of this section, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised. (c) There are exempted from the use tax imposed by this ordinance, the storage, use or other consumption in this City of tangible personal property: (1) The gross receipts from the sale of which have been subject to a transactions tax under any state-administered transactions and use tax ordinance. (2) Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government. This exemption is in addition to the exemptions provided in §§ 6366 and 6366.1 of the Cal. Revenue and Taxation Code. (3) If the purchaser is obligated to purchase the property for a fixed price 5.1.a Packet Pg. 359 Resolution No. 2020-35 pursuant to a contract entered into prior to the operative date of this ordinance. (4) If the possession of, or the exercise of any right or power over, the tangible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of this ordinance. (5) For the purposes of paragraphs (c)(3) and (4) of this section, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed no t to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised. (6) Except as provided in paragraph (c)(7), a retailer engaged in business in the City shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the City or participates within the City in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the City or through any representative, agent, canvasser, solicitor, subsidiary, or person in the City under the authority of the retailer. (7) "A retailer engaged in business in the City" shall also include any retailer of any of the following: vehicles subject to registration pursuant to Chapter 1 (commencing with § 4000) of Division 3 of the Cal. Vehicle Code, aircraft licensed in compliance with § 21411 of the Cal. Public Utilities Code, or undocumented vessels registered under Division 3.5 (commencing with § 9840) of the Cal. Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the City. (d) Any person subject to use tax under this chapter may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for a transactions tax pursuant to Part 1.6 of Division 2 of the Cal. Revenue and Taxation Code with respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax. Section 3.14.110 – Amendments. 5.1.a Packet Pg. 360 Resolution No. 2020-35 All amendments subsequent to the effective date of this chapter to Part 1 of Division 2 of the Cal. Revenue and Taxation Code relating to sales and use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Cal. Revenue and Taxation Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Cal. Revenue and Taxation Code, shall automatically become a part of this chapter, provided however, that no such amendment shall operate so as to affect the rate of tax imposed by this chapter. Section 3.14.120 – Enjoining collection forbidden. No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the State or the City, or against any officer of the State or the City, to prevent or enjoin the collection under this chapter, or Part 1.6 of Division 2 of the Cal. Revenue and Taxation Code, of any tax or any amount of tax required to be collected. Section 3.14.130 – Severability. If the provision of this Chapter or any application thereof is held invalid, such invalid provision or application shall not affect the such other provisions and applications set forth this chapter. Section 3.14.130 – Annual Audit. By no later than October 1 of each calendar year, the City shall cause an independent auditor to complete a “Diamond Bar Transactions and Use Tax Report.” Such report shall review whether the tax revenues collected pursuant to this chapter in the immediately preceding fiscal year have been collected, managed and expended in accordance with the requirements of this chapter. Section 3.14.140 – Operative date. This chapter shall be operative the first day of the first calendar quarter commencing more than 110 days after the effective date of this chapter, the effective date being as set forth below. SECTION II: The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of Diamond Bar’s book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. 5.1.a Packet Pg. 361 Resolution No. 2020-35 SECTION III: The Mayor and City Clerk are hereby authorized to attest to the adoption of this Ordinance by signing where indicated below. This Ordinance shall take effect ten (10) days following certification of the vote by the City Council. PASSED, APPROVED AND ADOPTED by the People of the City of Diamond Bar voting on November 3, 2020. ATTEST: _____________________________ Steve Tye, Mayor Approved as to Form: _____________________________ ______________________ Kristina Santana David DeBerry City Clerk City Attorney 5.1.a Packet Pg. 362 RESOLUTION NO. 2020-36 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR, CALIFORNIA, SETTING PRIORITIES FOR FILING OF WRITTEN ARGUMENT REGARDING A CITY COUNCIL-INITIATED TRANSACTIONS AND USE TAX MEASURE AND DIRECTING THE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS. WHEREAS, pursuant to Elections Code section 9287, the City Council is given first priority to submit an argument in favor of a proposed City Council initiated measure and to select its member(s) to draft the argument; and WHEREAS, pursuant to Elections Code section 9280, the City council may direct the City Attorney to prepare an impartial analysis of the measure; and WHEREAS, the City Council desires to submit to the voters the following measure (hereafter, the “Measure”) at said election: NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DIAMOND BAR, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: Section 1. That pursuant to Elections Code sections 9282 and 9286 the deadline for submitting direct written arguments in favor of and arguments against (not to exceed 300 words) the Measure to the City Clerk for transmittal to the County Registrar of Voters is hereby set for August 14, 2020 at 5:00 p.m. Subdivisio n (a) of Elections Code section 9285 relating to rebuttal arguments shall not apply. Section 2. That the City Council authorizes the following members of its body to file a single written argument not exceeding 300 words, including title, regarding the Measure as specified above, accompanied by the printed name(s) and signature(s) of the authors submitting it, in accordance with Article 4, Chapter 3, Division 9 of the Elections Code of the State of California. The arguments may be changed or withdrawn unt il and including the date fixed by the City Clerk after which no arguments for or against the City measure may be submitted to the City Clerk. Mayor Steve Tye Mayor Pro Tem Nancy Lyons Measure to Fund Local Services. Shall the Ordinance to increase the Transactions and Use Tax by ¾ cents providing approximately $3,800,000 annually, with no expiration date to be used for essential city services such as street maintenance and public safety and other city services such as parks and recreation facilities and programs be adopted? Yes No 5.1.b Packet Pg. 363 Resolution No. 2020-36 Section 3. That in the event that more than one direct argument is submitted in favor of or in opposition to the Measure, pursuant to Elections Code section 9287, the order of priority for the City Clerk in selecting the argument shall be: (1) the City Council, or member(s) of the City Council authorized by the City Council to submit the argument in favor; (2) an individual voter or bona fide association of citizens, or combination thereof, who are the bona fide sponsors or proponents of the Measure; (3) a bona fide association of citizens; and (4) individual voters who are eligible to vote on the Measure; and Section 4. That pursuant to Elections Code section 9280 the City Council directs the City Clerk to transmit a copy of the Measure to the City Attorney, unless the organization or salaries of the office of the City Attorney are affected. The City Attorney shall prepare an impartial analysis of the Measure not exceeding 500 words showing the effect of the Measure on the existing law and the operation of the Measure and shall submit such analysis to the City Clerk for transmittal to the County Registrar of Voters by August 14, 2020. Section 5. That the City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions. PASSED, APPROVED AND ADOPTED THIS 21st day of July, 2020. _____________________________ Steve Tye, Mayor ATTEST: I, Kristina Santana, City Clerk for the City of Diamond Bar, hereby certify that the foregoing resolution, was duly passed, approved and adopted by the City Council of the City of Diamond Bar at a regular meeting held on the 21st day of July, 2020, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: ________________________________ Kristina Santana, City Clerk 5.1.b Packet Pg. 364 Agenda #: 5.2 Meeting Date: July 21, 2020 TO: Honorable Mayor and Members of the City Council FROM: Daniel Fox, City Manager TITLE: SUPPORT LETTERS REGARDING RESPONSIBLE USE OF FORCE POLICY REFORM. STRATEGIC GOAL: Safe, Sustainable & Healthy Community RECOMMENDATION: Discuss the revised letter of support to Los Angeles County Sheriff Villanueva and provide direction as deemed appropriate. FINANCIAL IMPACT: No financial impacts. BACKGROUND/DISCUSSION: At the June 16, 2020 City Council meeting, it was the consensus of the Council to place on the agenda a request made by Council Member Chou to consider expressing support regarding efforts to reform use of force policies in light of the in-custody death of George Floyd in Minneapolis on Memorial Day. More specifically, Council Member Chou requested that the Council: 1) express support for AB 1196 (Gipson) which would prohibit the use of carotid restraints; and 2) encourage the Los Angeles County Sheriff Department (LASD) to review their use of forces policies and adapt them to reflect the eight (8) principles outlined by the Campaign Zero organization. Based on discussion at the July 7, 2020 meeting, it was the consensus of the Council to not take any action related to AB 1196, and to revise the Draft letter regarding use of force policies. A revised Draft letter has been prepared for Council consideration based on that direction (Attachment 1). PREPARED BY: 5.2 Packet Pg. 365 REVIEWED BY: Attachments: 1. 5.2.a DB Responsible Reform DRAFT 7-21-2020 5.2 Packet Pg. 366 July 21, 2020 Sheriff Alex Villanueva Los Angeles County Sheriff’s Department 211 West Temple St. Los Angeles, CA 90012 RE: Responsible Policing and Use of Force Reform Dear Sheriff Villanueva: The City of Diamond Bar respectfully supports efforts by the State, County, Sheriff’s Department, and law enforcement agencies throughout California to engage and provide the long-term structural change needed to ensure the safety of the community and law enforcement personnel. We can all agree that racism and discrimination have no place in our society. It is with the tragic death of Mr. George Floyd and national events that have resulted in all law enforcement agencies, municipalities and state agencies evaluating their use of force policies. There are several endeavors currently underway by the State Legislature, private movement with Campaign Zero and 8CantWait, as well as public engagement at each of our respective public meetings. The Los Angeles County Sheriff’s Department has historically served our community as its mandate and provided exceptional service since the City’s incorporation. It is the City’s understanding that the Sheriff’s Department has previously instituted policies consistent with action items requested under Campaign Zero. The City supports the Department as it works collaboratively with the Board of Supervisors, to continue these proactive measures. The City Council values the hard work of our law enforcement officers and recognizes that they dedicate themselves to the highest ethical standards and serve our community of Diamond Bar with honor every day. The Diamond Bar City Council is hopeful and supportive of all efforts, working in partnership with the County Board of Supervisors and Sheriff’s Department, to continue to evaluate and implement meaningful reform that will ultimately ensure the safety of the public and law enforcement personnel. 5.2.a Packet Pg. 367 Sheriff Alex Villanueva Responsible Policing and Use of Force Reform July 21, 2020 Page 2 If you have any questions, City Manager Dan Fox is available to discuss with your staff and can be reached at 909.839.7010 or dfox@diamondbarca.gov. Sincerely, Steve Tye, Mayor City of Diamond Bar CC: Los Angeles County Board of Supervisors City Council City Manager Captain Al Reyes, LASD 5.2.a Packet Pg. 368