Town Council Agenda
Wednesday, April 19, 2023, 5:00 p.m.
437 Old Mammoth Road, Suite Z, Mammoth Lakes
Members of the Town Council:
Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, Councilmember Amanda Rice
NOTE: In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Town Clerk at (760) 965-3602. Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 13.102-35.104 ADA Title II)
NOTE: Materials related to an item on this agenda submitted after distribution of the agenda packet are available for public inspection in the Town Offices located at 437 Old Mammoth Road, Suite 230 during normal business hours. Such documents are also available on the Town of Mammoth Lakes website at www.townofmammothlakes.ca.gov subject to staff’s ability to post the documents before the meeting.
NOTE: All comments will be limited to a speaking time of five minutes.
NOTE: This meeting will be conducted pursuant to the provisions of Assembly Bill 361 which amends certain requirements of the Ralph M. Brown Act. While Suite Z is still open to the public, it is strongly encouraged that you watch the Town Council meetings on the Town of Mammoth Lakes' website at www.townofmammothlakes.ca.gov , on the local government cable channel 18, or via Zoom. Public comments can be submitted to the Town Clerk at [email protected]. before and during the meeting.
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1. CALL TO ORDER
Councilmember Bill Sauser will be participating in the meeting remotely from 808 Great Sky Court, N. Las Vegas, NV 89084.
2. PLEDGE OF ALLEGIANCE
3. PUBLIC COMMENTS
The Public Comment portion of the agenda provides the public with an opportunity to address the Town Council on matters not otherwise listed on the agenda. Under California law the Town Council is prohibited from generally discussing or taking action on items not included in the agenda; however, the Town Council may briefly respond to comments or questions from members of the public. Therefore, the Town Council will listen to all public comment, but will not generally discuss the matter or take action on it. Requests for service from the Town may also be made at the Town offices during regular business hours.
Members of the public desiring to speak on a matter appearing on the agenda should ask the Mayor for the opportunity to be heard when the item comes up for Council consideration.
4. ADDITIONS TO THE AGENDA
Opportunity to add urgency items pursuant to Government Code Section 54954.2(b)2, if necessary.
5. REPORTS FROM COMMISSIONS AND/OR DEPARTMENTS (AS NEEDED)
6. CONSENT AGENDA
6.1 Approve the minutes of the special meeting of March 31, 2023.
6.2 Approve the minutes of the regular meeting of April 5, 2023.
6.3 Approve the minutes of the special meeting of April 12, 2023.
6.4 Waive the second reading and adopt by title only the Ordinance authorizing the levy of special taxes in a Community Facilities District 2023-1.
6.5 Direct staff to schedule the interviews of the Building Advisory Committee/Board of Appeals applicants on April 26, 2023 starting at 4:10 p.m.
6.6 Waive the reading and adopt by title only the ordinance making the required CEQA and Municipal Code findings and approving Zoning Code Amendment 23-001.
6.7 Approve the Innsbruck Lodge Affordable Housing Project Grant Agreement with Mammoth Lakes Housing, Inc.
6.8 Accept Check Register 3/31/2023 in the amount of $1,439,272.28. Accept Check Register 4/6/2023 in the amount of $503,531.50.
7. PUBLIC HEARINGS
Public Hearing Procedure.
The Mayor will open the public hearing and then: Statement and presentation by staff.
Statement and presentation by property owner or appellant. Questions from the Town Council. Call for testimony. Rebuttal to previous testimony by property owner or appellant.
Close the public hearing, terminating public testimony. The Town Council will deliberate the matter and arrive at a decision.
7.1 Adopt the resolution ordering the detachment of territory from the North Village Benefit Assessment District 2002-2.
7.2 Public Hearing on Resolution to Modify the 2018-23 Mammoth Lakes Tourism Business Improvement District Management Plan.
8. POLICY MATTERS
8.1 Update and Council Direction on Response to Local Extreme Weather Declared Emergency, and Approval to Continue Emergency Road Repairs.
9. COUNCILMEMBER REPORTS
Informational reports from Councilmember representatives on committees, commissions, and organizations; general reports on Councilmember activities
10. CLOSED SESSION
10.1 Pursuant to Government Code Section 54957, the Council will hold a conference to consider evaluation of a public employee: Town Manager.
10.2 Pursuant to Government Code Section 54957.6.(a), Conference with Labor Negotiators, the Council will meet with its representatives, Town Manager Daniel C.
Holler, Administrative Services/Finance Director Rob Patterson, Community and Economic Development
Sandra Moberly, and HR Manager Amanda Pelham with respect to the following Employee Organizations: Mammoth Lakes General Employees Association, Mammoth Lakes Management Employees Association, and the Mammoth Lakes Public Works Employees Association.
11. ANNOUNCEMENT OF ACTION TAKEN AFTER CLOSED SESSION
12. ADJOURNMENT
The Town Council will adjourn to a special meeting to be held on Wednesday, April 26, 2023 at 4:00 p.m.
Town Council of Mammoth Lakes
Minutes of Special Meeting
March 31, 2023, 1:30 p.m.
437 Old Mammoth Road, Suite Z, Mammoth Lakes
Members Present: Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Sarah Rea, Councilmember Amanda Rice
Members Absent: Councilmember Chris Bubser
_____________________________________________________________________
1. CALL TO ORDER
The Mayor called the meeting to order at 1:30 p.m. in the Council Chamber, 437 Old Mammoth Road, Suite Z, Mammoth Lakes.
2. PLEDGE OF ALLEGIANCE
Dr. Karen Slack led the flag salute.
3. PUBLIC COMMENTS
There were no public comments given at this time.
4. POLICY MATTERS
4.1 Resolution Ratifying the Updated Town Manager Proclamation Declaring the Existence of a Local Emergency.
Town Manager Daniel C. Holler introduced Public Health Officer Dr. Karen Slack to the Council and the community. Mr. Holler outlined the information in the staff report. Dr. Slack introduced herself and outlined the
Town Council Minutes
March 31, 2023
mental health toll encountered during the recent emergency. There was discussion among members of Council, staff. and Dr. Slack.
PUBLIC COMMENT:
John Zurinsky outlined his concerns regarding the red-tagging of his residence. Mr. Holler responded.
Rachel Hilton sent an email regarding her concerns regarding the redtagging of her residence.
Moved by Mayor Pro Tem Bill Sauser
Adopt the Resolution Ratifying the Updated Town Manager Proclamation Declaring the Existence of a Local Emergency, including the approval of the Mammoth Mountain Community Foundation funding agreement.
For (4): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Absent (1): Councilmember Chris Bubser
Carried (4 to 0)
5. ADJOURNMENT
The Council adjourned the meeting at 1:52 p.m.
Jamie Gray, Town Clerk
Town Council of Mammoth Lakes
Minutes of Regular Meeting
April 5, 2023, 4:00 p.m.
437 Old Mammoth Road, Suite Z, Mammoth Lakes
Members Present: Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea,
Councilmember Amanda Rice
_____________________________________________________________________
1. CALL TO ORDER
Councilmember Chris Bubser will be participating remotely from 56 Ainger Road, Flat 4, London, England NW3 3AH.
The Mayor called the meeting to order at 4:00 p.m. in the Council Chamber, 437 Old Mammoth Road, Suite Z, Mammoth Lakes.
2. PLEDGE OF ALLEGIANCE
Alisa Mokler Harper led the flag salute.
3. PUBLIC COMMENTS
Alisa Mokler Harper, owner of the Warming Hut restaurant, said that Old Mammoth Road was closed down today during business hours, and she requested communication from the Town regarding road closures ahead of time so that she could plan her business accordingly.
Town Council Minutes
April 5, 2023
4. ADDITIONS TO THE AGENDA
There were no additions to the agenda.
5. REPORTS FROM COMMISSIONS AND/OR DEPARTMENTS (AS NEEDED) Town Manager Daniel C. Holler gave an update regarding the response to the current emergency. There was discussion among members of Council and staff.
Councilmember Rea arrived at 4:05 p.m.
Parks and Recreation Director Stuart Brown gave an update regarding current parks and recreation activities. There was discussion among members of Council and staff.
5.1 Did you Know? Update.
Town Manager Daniel C. Holler outlined information in the Did You Know attachments. There was discussion among members of Council and staff.
6. PUBLIC PRESENTATIONS
6.1 Proclamation declaring April 2023 as Fair Housing Month.
Mayor Wentworth read a portion of the proposed proclamation.
Mammoth Lakes Housing Executive Director Patricia Robertson, speaking on behalf of the Mammoth Lakes Board of Realtors and Mammoth Lakes Housing, spoke in support of the proclamation.
Moved by Mayor Pro Tem Bill Sauser
Seconded by Councilmember Amanda Rice
Approve the proclamation declaring April as Fair Housing Month.
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Carried (5 to 0)
6.2 Proclamation declaring April 2023 as Child Abuse Prevention Month.
Mayor Wentworth read a portion of the proposed proclamation.
Town Council Minutes
April 5, 2023
Kevin Lian and Michelle Raust, Mono County Office of Education, spoke in support of the proclamation and announced activities taking place in support of Child Abuse Prevention Month.
Moved by Councilmember Amanda Rice
Seconded by Mayor Pro Tem Bill Sauser
Approve the proclamation declaring April as Child Abuse Prevention Month.
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Carried (5 to 0)
6.3 Proclamation declaring April 2023 as Sexual Assault Awareness Month.
Mayor Wentworth read a portion of the proposed proclamation.
Vanessa Hays, Executive Director for Wild Iris, spoke in support of the proclamation.
Moved by Councilmember Sarah Rea
Approve the proclamation declaring April as Sexual Assault Awareness Month.
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Carried (5 to 0)
6.4 Update on the Community Economic Resilience Fund (CERF).
Stacy Corless, Sierra Business Council Government and Community Affairs Director, Magnolia Barra CERF Project Navigator, and Erica Harvey, Project Director, gave a presentation regarding an update on the Eastern Community Economic Resilience Fund (CERF). There was discussion among members of Council and Sierra Business Council staff.
Town Council Minutes
April 5, 2023
7. WORKSHOP
7.1 Joint Meeting with Mammoth Lakes Tourism – Tourism Business Improvement (TBID) Focus.
Mammoth Lakes Tourism (MLT) Board President Jeremy Goico, Vice President Pat Foster, Secretary John Mendel, Board Member Eric Clark, and Board Member Bill Sauser were in attendance. MLT Board Members Deb Radcliff and Darlene Magner were absent.
Town Manager Daniel C. Holler outlined the information in the staff report.
There was discussion among members of Council, members of the MLT Board, MLT Executive Director John Urdi, consultant John Lambeth from Civitas, and staff regarding the discussion questions.
PUBLC COMMENT:
Dawn Vereuck said that she listened to the MLT meeting and said she was glad to hear their discussion about funding infrastructure. She said that a lot of people in the community did not have a say in the TBID. She outlined her concerns regarding the TBID renewal.
Tom Cage said he answered yes to question number one. He said that he had previously supported the TBID and renewal. He said that he supported the TBID renewal but not for 10 years.
Ron Cohen, Mammoth Mountain, spoke in support of the TBID renewal and the proposed 10-year term.
Alisa Mokler Harper, Warming Hut restaurant, spoke in support of the TBID renewal and the addition of infrastructure funding.
Emily Bryant spoke in support of the TBID renewal and in support of the Town building infrastructure with the extra funding that the TBID provided to the Town.
Mr. Cohen said his business felt the benefit of the TBID. He recommended having small business owner representation on the MLT Board.
Ms. Harper said that there was a need for infrastructure to support visitorship but that the funds should come from the Town and TOT and not the TBID.
Chris, employee at DIY, spoke about her concerns with the DIY building being closed.
Town Council Minutes
April 5, 2023
The Mayor called a recess at 7:12 p.m. and the Council reconvened at 7:26 p.m.
8. CONSENT AGENDA
Moved by Mayor Pro Tem Bill Sauser
Seconded by Councilmember Amanda Rice
Approve the Consent Agenda.
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice Carried (5 to 0)
8.1 Approve the minutes of the regular meeting of March 15, 2023.
8.2 Approve the minutes of the special meeting of March 22, 2023.
8.3 Accept the 2022 Annual Planning Report.
8.4 Accept Check Register 2/23/2023 in the amount of $1,483,715.93.
Accept Check Register 3/3/2023 in the amount of $313,443.60. Accept Check Register 3/8/2023 in the amount of $132,279.23. Accept Check Register 3/16/2023 in the amount of $1,993,830.66. Accept Check Register 3/23/2023 in the amount of $61,306.12.
9. PUBLIC HEARINGS
9.1 Consider approval of Zoning Code Amendment 23-001 to update Municipal Code Section 17.52.055, Accessory Dwelling Units, Section
17.52.100 Child Day Care Facilities, and Municipal Code Chapter
17.40, Water Efficient Landscape Regulations including finding the project is exempt from additional environmental analysis pursuant to Public Resources Code Section 21083.3 and CEQA Guidelines Section 15183.
The Mayor opened the public hearing at 7:28 p.m.
Senior Planner Kim Cooke gave a presentation outlining the information in the staff report. There was discussion among members of Council and staff.
With no members of the public coming forward to speak, the Mayor closed the public hearing at 7:42 p.m.
Town Council Minutes
April 5, 2023
Moved by Councilmember Amanda Rice
Seconded by Councilmember Sarah Rea
Waive the first reading and introduce by title only the Ordinance making the required CEQA and Municipal Code findings and approving Zoning Amendment 23-001 as recommended by the Planning and Economic Development Commission.
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Carried (5 to 0)
9.2 Town of Mammoth Lakes Maintenance Community Facilities District (CFD) 2023-1 Formation.
The Mayor opened the public hearing at 7:44 p.m.
No written protests were filed with the Town Clerk.
Town Manager Daniel C. Holler outlined the information in the staff report.
With no members of the public coming forward to speak, the Mayor closed the public hearing at 7:46 p.m.
Moved by Mayor John Wentworth
Seconded by Councilmember Amanda Rice
Adopt the resolution establishing the formation of a Community Facilities District, authorizing the levy of a special tax, and submitting the levy of a special tax to qualified electors.
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Carried (5 to 0)
Moved by Mayor John Wentworth
Seconded by Councilmember Amanda Rice
Adopt the resolution calling a special election for a Community Facilities District.
Town Council Minutes
April 5, 2023
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Carried (5 to 0)
Town Clerk Jamie Gray announced the results of the election.
Moved by Mayor John Wentworth
Seconded by Councilmember Sarah Rea
Adopt the resolution declaring results of a special election and directing the recording of a special tax lien.
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Carried (5 to 0)
Moved by Mayor John Wentworth
Seconded by Councilmember Sarah Rea
Waive the first reading and introduce by title only the ordinance authorizing the levy of special taxes in Community Facilities District.
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Carried (5 to 0)
Moved by Mayor John Wentworth
Seconded by Mayor Pro Tem Bill Sauser
Adopt the resolution declaring the intention to order the detachment of territory from the North Village Benefit Assessment District 2002-2.
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Town Council Minutes
April 5, 2023
Carried (5 to 0)
10. POLICY MATTERS
10.1 Approve the resolution adopting Town of Mammoth Lakes Legislative Platform.
Assistant to the Town Manager Pam Kobylarz outlined the information in the staff report. There was discussion among members of Council and staff.
Moved by Councilmember Amanda Rice
Seconded by Councilmember Sarah Rea
Approve the resolution adopting the Town of Mammoth Lakes Legislative Platform.
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Carried (5 to 0)
10.2 Resolution of Intention to Modify the Mammoth Lakes Tourism Business Improvement District Management District Plan.
Town Manager Daniel C. Holler outlined the information in the staff report.
Mammoth Lakes Tourism Executive Director John Urdi outlined the need for the amendment. There was discussion among members of Council and Mr. Urdi.
Moved by Mayor Pro Tem Bill Sauser
Seconded by Councilmember Amanda Rice
Adopt the Resolution with the intent to modify the Mammoth Lakes Tourism Business Improvement District (MLTBID) Management District Plan (MDP) to address a recent opinion on the taxability of certain elements of the plan.
Adoption of this resolution will result in a public hearing on April 19, 2023 on the Management District Plan.
Town Council Minutes
April 5, 2023
For (5): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Sarah Rea, and Councilmember Amanda Rice
Carried (5 to 0)
10.3 Update and Council Direction on Management Response to Extreme Weather Emergency.
Town Manager Daniel C. Holler, Public Works Director Haislip Hayes, Town Attorney Andrew Morris, and Mammoth Lakes Fire Protection District Fire Chief Ales Tomaier gave an update regarding the current emergency.
PUBLIC COMMENT:
Patricia Robertson, Executive Director of Mammoth Lakes Housing, asked why Mono County and the Town were not included in the federal emergency declaration, and why we have to pay our taxes on time but Inyo and Alpine counties do not. Mr. Holler responded to her questions.
11. COUNCILMEMBER REPORTS
Councilmember Rice attended the Mammoth Lakes Housing Board meeting.
Mayor Pro Tem Sauser attended the Mammoth Lakes Tourism Board meeting and met with the Town Manager and FBO Operator Pat Foster at the Mammoth Airport.
Mayor Wentworth met with State Senator Marie Alvarado-Gil.
12. CLOSED SESSION
At 8:45 p.m. the Mayor announced that the Council would be entering into closed session for the purposes as stated on the agenda.
12.1 CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION (Paragraph 1 of subdivision (d) of Section 54956.9) Name of case:
Main Street Taxpayer Association v. Town of Mammoth Lakes (Case No. : 23UCM82)
12.2 CONFERENCE WITH LEGAL COUNSEL--EXISTING
LITIGATION (Paragraph 1 of subdivision (d) of Section
54956.9) Name of case: Stephanie Thompson. v. Town of Mammoth Lakes (Case No: 23UCM14)
Town Council Minutes
April 5, 2023
13. ANNOUNCEMENT OF ACTION TAKEN AFTER CLOSED SESSION
The Council reconvened from closed session at 8:55 p.m. and announced that there was no reportable action taken.
14. ADJOURNMENT
The Council adjourned the meeting at 8:55 p.m.
Jamie Gray, Town Clerk
Town Council of Mammoth Lakes
Minutes of Special Meeting
April 12, 2023, 4:00 p.m.
437 Old Mammoth Road, Suite Z, Mammoth Lakes
Members Present: Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, Councilmember Amanda Rice
Members Absent: Councilmember Sarah Rea
_____________________________________________________________________
1. CALL TO ORDER
The Mayor called the meeting to order at 4:02 p.m. in the Council Chamber, 437 Old Mammoth Road, Suite Z, Mammoth Lakes.
2. PLEDGE OF ALLEGIANCE
Mammoth Lakes Fire Protection District Fire Chief Ales Tomaier led the flag salute.
3. PUBLIC COMMENTS
Town Manager Daniel C. Holler outlined the need for an urgency item.
It was moved by Mayor Pro Tem Bill Sauser, seconded by Councilmember Amanda Rice, and carried by a 4-0 vote that, pursuant to Government Code Section 54954.2b2, the Council hereby determines that there is a need to take immediate action and that the need for action came to the attention of the Town subsequent to the agenda being posted as specified in subdivision a, said item being:
Town Council Minutes
April 12, 2023
A Resolution finding that the emergency circumstances justify awarding a contract for street repair work without competitive bidding.
Patricia Robertson, Executive Director of Mammoth Lakes Housing (MLH), announced that MLH had a grant for funds for rehabilitation of homes for health and safety repairs.
John Urdi, Executive Director of Mammoth Lakes Tourism, announced that they had extended air service with Advanced Air for the last two weekends of April.
Parks and Recreation Director Stuart Brown announced that the Town of Mammoth Lakes had an Instagram account.
CJ Sterling submitted an email regarding his opposition to the TBID.
4. POLICY MATTERS
4.1 Fiscal Year 23-24 Preliminary Budget (Department Requested).
Administrative Services/Finance Director Rob Patterson outlined the information in the staff report. There was discussion among members of Council and staff.
CONSENSUS: Fund reserves through the budget process
CONSENSUS: Excess Measure A funding from Housing and Tourism will be allocated to the Housing Now! Program
PUBLIC COMMENT:
Pat Foster, Mammoth Lakes Tourism (MLT), said that we needed to change the negative tone. He clarified the process for adding members to the Board and for spending MLT funds. He said that it was a goal of MLT to change the times when the Town was busy. Mr. Foster said we needed to work together.
Ron Cohen, Mammoth and June Mountain Ski Areas, said that the Town and MLT had been successful and that the tone of conversation did not reflect that. He advised letting marketers do the marketing. He said he thought the MLT contract could be reduced to $1M.
Ted Carleton, The Sheet, asked why we were keeping the reserve war chest.
Jeremy Goico, Chair of Mammoth Lakes Tourism and Chamber of Commerce representative, said that we needed to be prepared for a
Town Council Minutes
April 12, 2023
recession. He said that his business just had the worst March in nine years, and that he had huge CAM fees from this winter. He said that they would be presenting the strongest TBID renewal ever. Mr. Goico said that he was in favor of a $2M contract with MLT.
CONSENSUS: Move forward with an MLT contract.
Mr. Carleton asked for a realistic budget regarding road rehabilitation and street maintenance.
4.2 Update and Council Direction on Response to Local Extreme Weather Declared Emergency.
This item was taken out of order.
Town Manager Daniel C. Holler, Public Works Director Haislip Hayes, and Mammoth Lakes Fire Protection District Fire Chief Ales Tomaier gave an update regarding the current emergency response and recovery. There was discussion among members of Council and staff.
PUBLIC COMMENT:
Patricia Robertson Executive Director of Mammoth Lakes Housing, reported on the impacts to the lives of the people displaced due to health and safety issues. She asked if the Council would consider a temporary moratorium on evictions, She said that she supported the proposed funding but asked to expand the uses of those funds. Ms. Robertson announced that MLH now had four full-time staff members. There was discussion among members of Council and Ms. Robertson.
Moved by Mayor Pro Tem Bill Sauser
Seconded by Councilmember Amanda Rice
Approve grant funding of $100,000 to Mammoth Lakes Housing for the provision of temporary emergency housing. Approve $500,000 for the small business grant program to offset the costs of snow removal.
For (4): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, and Councilmember Amanda Rice Absent (1): Councilmember Sarah Rea
Carried (4 to 0)
Town Council Minutes
April 12, 2023
Urgency Item: Resolution finding that the emergency circumstances justify awarding a contract for street repair work without competitive bidding.
Moved by Mayor Pro Tem Bill Sauser
Seconded by Councilmember Amanda Rice
Approve the resolution finding that emergency circumstances justify awarding a contract for street repair work without competitive bidding.
For (4): Mayor John Wentworth, Mayor Pro Tem Bill Sauser, Councilmember Chris Bubser, and Councilmember Amanda Rice Absent (1): Councilmember Sarah Rea
Carried (4 to 0)
The Mayor called a recess at 5:18 p.m. and the Council reconvened at 5:29 p.m.
5. CLOSED SESSION
At 7:14 p.m. the Mayor announced that the Council would be entering into closed session for the purposes as stated in the agenda.
5.1 Pursuant to Government Code Section 54957.6.(a), Conference with Labor Negotiators, the Council will meet with its representatives, Town Manager Daniel C. Holler, Administrative Services/Finance Director Rob Patterson, Community and Economic Development Sandra Moberly, and HR Manager Amanda Pelham with respect to the following Employee Organizations: Mammoth Lakes General Employees Association, Mammoth Lakes Management Employees Association, and the Mammoth Lakes Public Works Employees Association.
6. ANNOUNCEMENT OF ACTION TAKEN AFTER CLOSED SESSION
The Council reconvened from closed session at 8:17 p.m. and announced that there was no reportable action taken.
Town Council Minutes
April 12, 2023
7. ADJOURNMENT
The Council adjourned the meeting at 8:17 p.m.
Jamie Gray, Town Clerk
1 TOWN COUNCIL STAFF REPORT
Title: Waive the second reading and adopt by title only the Ordinance authorizing the levy of special taxes in a Community Facilities District 2023-1.
Meeting Date: April 19, 2023
Prepared by: Pamela Smitheman, Assistant Engineer
RECOMMENDATION:
Waive the second reading and adopt by title only the Ordinance authorizing the levy of special taxes in Community Facilities District No. 2023-1 (Maintenance Services).
BACKGROUND:
On April 5, 2023, the Town Council conducted proceedings to form Community Facilities District No. 2023-1, including an election of the qualified electors in the territories proposed for inclusion. The Town Council adopted a resolution declaring the results of the election and directed the recording of the Notice of Special Tax Lien. Town Council then waived the first reading and introduced by title only this Ordinance authorizing the levy of special taxes in a Community Facilities District, no. 2023-1. There were no changes to the Ordinance during the meeting.
ORDINANCE NO.
ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF MAMMOTH
LAKES, STATE OF CALIFORNIA, AUTHORIZING THE LEVY OF SPECIAL TAXES
IN A COMMUNITY FACILITIES DISTRICT
TOWN OF MAMMOTH LAKES
COMMUNITY FACILITIES DISTRICT NO. 2023-1
(MAINTENANCE SERVICES)
WHEREAS, this Town Council (the “Town Council”) of the Town of Mammoth Lakes (the “Town”) on February 15, 2023, adopted Resolution No. 23-09 entitled “A Resolution of the Town Council of the Town of Mammoth Lakes, State of California, Declaring its Intention to Establish a Community Facilities District and to Authorize the Levy of Special Taxes” (the “Resolution of Intention”) and has conducted proceedings (the “Proceedings”) to establish the Town of Mammoth Lakes Community Facilities District No. 2023-1 (Maintenance Services) (the “District”) pursuant to the Mello-Roos Community Facilities Act of 1982 (Sections 53311 and following, California Government Code; hereafter referred to as the “Act”) to finance the costs of plowing and removal of snow, and maintenance of curbs/sidewalks, landscapes and streetlights and related appurtenances (the “Services”) as provided in the Act; and WHEREAS, the Resolution of Intention called for a public hearing to be held on April 5, 2023, or as soon thereafter as the matter may be heard; and
WHEREAS, on April 5, 2023, and as part of the Proceedings, this Town Council held a public hearing under the Act relative to the determination to proceed with the formation of the District and the rate and method of apportionment of the special tax (the “Special Tax”) to be levied within the District to finance the Services and, at such hearing, all persons desiring to be heard on all matters pertaining to the formation of the District and the levy of the Special Tax were heard, substantial evidence was presented and considered by this Town Council, and a full and fair public hearing was held; and
WHEREAS, upon the conclusion of the hearing, this Town Council adopted a resolution entitled “A Resolution of the Town Council of the Town of Mammoth Lakes, State of California, Establishing the Formation of a Community Facilities District” (the “Resolution of Formation”), whereby the Town Council (i) established the District, (ii) authorized the levy of the Special Tax within the District, and (iii) preliminarily established an appropriations limit for the District, all pursuant to the Act; and WHEREAS, on April 5, 2023, a special election was held among the landowner voters within the District at which the landowner voters approved the proposition relating to the levy of Special Taxes within the District and the establishment of an appropriations limit for the District by the two-thirds vote required by the Act, which approval has been confirmed by resolution of this Town Council; and WHEREAS, the Town Council ordered the recordation with the County Recorder of the County of Mono of a Notice of Special Tax Lien (the “Notice”).
NOW, THEREFORE, the Town Council of the Town of Mammoth Lakes, DOES HEREBY ORDAIN as follows:
By the passage of this Ordinance, the Town Council hereby authorizes and levies the Special Tax within the District pursuant to the Act, at the rate and in accordance with the rate and method of apportionment of Special Tax set forth in the Resolution of Formation, which rate and method is by this reference incorporated herein. The Special Tax is hereby levied commencing in fiscal year 2022-2023 and in each fiscal year thereafter to pay for the Services for the District and all costs of administering the District, as contemplated by the Resolution of Formation and the Proceedings.
1. The Town’s Finance Director or designee or employee or consultant of the Town is hereby authorized and directed each fiscal year to determine the specific Special Tax to be levied for the next ensuing fiscal year for each parcel of real property within the District, in the manner and as provided in the Resolution of Formation.
2. Exemptions from the levy of the Special Tax shall be as provided in the Resolution of Formation and the applicable provisions of the Act. In no event shall the Special Tax be levied on any parcel within the District in excess of the maximum Special Tax specified in the Resolution of Formation.
3. All of the collections of the Special Tax shall be used as provided in the Act and in the Resolution of Formation, including, but not limited to, the payment of the costs of the Services, the payment of the costs of the Town in administering the District, and the costs of collecting and administering the Special Tax.
4. The Special Tax shall be collected in the same manner as ordinary ad valorem taxes are collected and shall have the same lien priority and be subject to the same penalties and the same procedure and sale in cases of delinquency as provided for ad valorem taxes; provided, however, that the Town Council may provide for other appropriate methods of collection by resolution(s) of the Town Council. The Finance Director of the Town is hereby authorized and directed to provide all necessary information to the auditor/tax collector of the County of Mono in order to effect proper billing and collection of the Special Tax, so that the Special Tax shall be included on the secured property tax roll of the County of Mono for fiscal year 2022-23 and for each fiscal year thereafter until no longer required to pay for the Services or until otherwise terminated by the Town.
5. If for any reason any portion of this ordinance is found to be invalid, or if the special tax is found inapplicable to any particular parcel within the District by a court of competent jurisdiction, the balance of this ordinance and the application of the special tax to the remaining parcels within the District shall not be affected.
6. The Mayor shall sign this Ordinance and the Town Clerk shall cause the same to be published immediately after its passage at least once in a newspaper of general circulation for the Town.
7. If any section, sub-section, subdivision, paragraph, clause or phrase in this Ordinance, or any part thereof, is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections or portions of this Ordinance or any part thereof. The Town Council hereby declares that it would have passed each section, sub-section, subdivision, paragraph, sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more sections, sub-sections, subdivisions, paragraphs, sentences, clauses or phrases may be declared invalid or unconstitutional.
8. This Ordinance shall become effective thirty (30) days following adoption.
INTRODUCED and first read on the 5
th day of April 2023; and PASSED AND ADOPTED this 19th day of April 2023.
___________________________
JOHN WENTWORTH, Mayor
ATTEST:
___________________________
JAMIE GRAY, Town Clerk
Mammoth Lakes Town Council
Agenda Action Sheet
Title: Direct staff to schedule the interviews of the Building Advisory Committee/Board of Appeals applicants on April 26, 2023 starting at 4:10 p.m.
Council Meeting Date: 4/19/2023
Prepared by: Jamie Gray, Town Clerk
Recommended Motion: Direct staff to schedule the interviews of the Building Advisory Committee/Board of Appeals applicants on April 26, 2023 starting at 4:10 p.m.
Summary: One term of office became vacant on the Building Advisory Committee/Board of Appeals due to the resignation of Dan Polis, who thought he had to resign due to the fact that he was going to miss a meeting. The term of appointment expires on April 1, 2024.
Notice of the vacancies was advertised, and the deadline for receipt of applications was April 10, 2023 at 5:00 p.m. Two applications were received for the vacancies. The applicants are Jennifer Kreitz and Dan Polis. The applications are attached.
The Town Municipal Code states that all appointments to commissions and committees shall be made by the Town Council. It does not state the manner in which this is to be accomplished.
Mammoth Lakes Town Council
Agenda Action Sheet
Title: Second reading for Zoning Code Amendment (ZCA) 23-001 to update M.C. Section
17.52.055, 17.52.100, and Chapter 17.40.
Council Meeting Date: 4/19/2023
Prepared by: Kim Cooke, Senior Planner
Recommended Motion: Waive the second reading and adopt by title only the Ordinance making the required CEQA and Municipal Code findings and approving Zoning Amendment 23-001.
Summary:
The proposed Zoning Code Amendment achieves consistency with recent changes to State law applicable to ADUs and State licensed family child care homes. This Zoning Code Amendment also implements three action items of the General Plan Public Health and Safety Element, which directs staff to update the Town’s landscape regulations to incorporate defensible space standards that would be applicable to new and rehabilitated landscape projects.
The Town Council considered the proposed Zoning Code Amendment at a public hearing on April 5, 2023, and voted 5-0 to waive the first reading and introduce by title only the ordinance making the required CEQA and Municipal Code findings, and approving Zoning Code Amendment 23- 001 as recommended by the Planning and Economic Development Commission.
If the Town Council approves Zoning Code Amendment (ZCA) 23-001, the ordinance will become effective 30 days after the date of approval, on Friday, May 19.
Attachments:
Town Council Staff Report and Attachments dated April 5, 2023.
1 TOWN COUNCIL STAFF REPORT
Subject: Consider approval of Zoning Code Amendment 23-001 to update Municipal Code Section 17.52.055, Accessory Dwelling Units, Section
17.52.100 Child Day Care Facilities, and Municipal Code Chapter 17.40, Water Efficient Landscape Regulations.
Meeting Date: April 5, 2023
Written by: Kimberly Cooke, Senior Planner
RECOMMENDATION:
Staff recommends that the Town Council choose Option 1:
Waive the first reading and introduce by title only the Ordinance making the required CEQA and Municipal Code findings and approving Zoning Amendment 23-001 as recommended by the Planning and Economic Development Commission, or as modified by the Town Council. The proposed Zoning Code Amendment includes finding the project is exempt from additional environmental analysis pursuant to Public Resources Code Section 21083.3 and CEQA Guidelines Section 15183.
BACKGROUND:
The California Legislature has enacted a series of bills over the past few years aimed at easing a State-wide housing shortage as well as a shortage of regulated childcare options.
To comply with new State requirements applicable to accessory dwelling units (ADUs) and child daycare facilities, local ordinances must be updated as needed to maintain consistency with State Law.
The proposed Zoning Code Amendment achieves consistency with recent changes to State law applicable to ADUs and State licensed family child care homes. This zoning code amendment process also provides an opportunity for the Town to implement three action items of the General Plan Public Health and Safety Element, which directs staff to update the Town’s landscape regulations to incorporate defensible space standards that would be applicable to new and rehabilitated landscape projects.
The Zoning Code is an evolving document that may be updated as necessary, following the amendment procedures outlined in Section 17.112 of the Municipal Code. The Zoning Code Amendment described in this staff report is not a comprehensive update, so the proposed text amendments are limited to updates that clarify existing regulations and include the addition of defensible space standards for landscape projects.
Planning and Economic Development Commission – February 14, 2023 On February 14, 2023, the PEDC held a public hearing to consider the proposed amendments to the Zoning Code. The Commission discussed the proposed amendments to the Zoning Code and were supportive of the proposed amendments as recommended by
2 staff. The Commission voted 4-0 to recommend approval of Zoning Code Amendment 23- 001 to the Town Council. The PEDC Resolution is attached (Attachment 2).
ANALYSIS:
The proposed Zoning Code amendments are described below along with a brief explanation of the purpose for each amendment. For the complete text of the Zoning Code Amendments (additions shown in blue underlined text and deletions shown in red strikeout text), see Attachment 1 – Exhibits “A, B, and C” respectively.
M.C. Section 17.52.055 - Accessory Dwelling Units
The proposed revisions to the Zoning Code will achieve compliance with state legislative requirements imposed by SB 897 and AB 2221. These recent legislative requirements enact development standards that all local jurisdictions must utilize when evaluating applications for accessory dwelling units (ADUs).
The amendment will increase the allowed height of detached and attached ADUs that are located within a side or rear setback area, up to four (4) feet from the property line. The permitted height for detached ADUs will increase from 16 to 18 feet with an allowance for an additional two feet to accommodate a roof pitch that aligns with the primary dwelling unit. The permitted height of detached ADUs on a lot with an existing or proposed multifamily dwelling will also increase from 16 to 18 feet. The permitted height of an ADU attached to a primary dwelling will increase from 16 feet to 25 feet. Additionally, front setback requirements cannot preclude the construction of an 800 square foot ADU that meets height limits and complies with four-foot side and rear setbacks.
Rationale: This amendment is limited to incorporating the mandated ADU standards described above, which will bring the Accessory Dwelling Unit standards into compliance with State law.
M.C. Section 17.52.100 - Child Day Care Facilities
Senate Bill 234 enacted the Keeping Kids Close to Home Act, which prohibits cities and counties from requiring any small or large family day care home licensed by the CA Department of Social Services, from having to obtain a land use/zoning permit and/or business license to operate. Health and Safety Code section 1597.45, states that Large Family Child Care Homes (caring for up to 14 children) shall be treated the same as Small Family Child Care Homes (caring for up to 8 children) under all local laws. The law states that cities and counties must consider the operation of a Large Family Child Care Home to be the same as a residential use of property as is the case with Small Family Child Care Homes.
Rationale: Section 17.52.100.A.1, is amended to provide clarification of the applicable State licensing division and briefly describes the role that agency has in oversight of all licensed child care facilities. Standards of section 17.52.100.B specific to large family day care homes has been deleted because large family day care homes are required to be treated the same as small family day care homes. The
3 new section 17.52.100.B. combines land use standards for small and large family day care homes, and clarifies that a single dwelling includes single-family homes, apartments, condos, townhouses, duplexes, and other multi-family buildings.
Currently, Section 17.52.100.C - Standards for Child Day Care Centers, incorporates the land use standards appliable large family day care homes by reference. Since the standards specific to large family day care homes are proposed to be deleted, the standards applicable to Child Care Centers will be modified to add the relevant land use standards that were previously required of large family day care centers. These standards include the fire protection and outdoor activity areas and snowshed standards.
Allowable land use Table 17.24.020 – Commercial Zoning Districts, has been updated to add large family day care homes alongside the small family day care homes land use category. Large family daycare homes are currently excluded. A reference to the applicable Code Section for the specific use regulations has been added for reference, as this was inadvertently omitted in the allowable land use table. The updated table also strikes the footnote which limits specific uses on the ground floor on primary or secondary active frontages. This footnote would not apply to the establishment of a small or large family day care within an existing residence so it should be deleted for clarity.
M.C. Chapter 17.40 - Water Efficient Landscape Regulations The purpose of the proposed amendment to Chapter 17.40 is to integrate wildfire riskreduction strategies into the design and implementation of new and rehabilitated landscape projects on private property. In 2019, the Town updated its Public Health and Safety Element of the General Plan. This update included the adoption of climate adaptation strategies and action items that direct staff to implement actionable strategies that can reduce the Town’s vulnerability to specific climate related hazards, including wildfire.
The three specific General Plan Action items that are addressed by the proposed Zoning Code Amendment are referenced below:
• S.5.A.2. Action: Prepare wildfire mitigation landscape standards to address wildfire hazard within the Structure Ignition Zone.
• S.5.A.3. Action: Review the Zoning Code to ensure compatibility with wildfire mitigation landscape standards and modify if necessary. • S.6.F.2. Action: Update building and landscaping requirements and protocols that integrate Cal Fire and MLFPD regulations and procedures.
Rationale: There is no current requirement to address wildfire hazard mitigation as part of the Town’s landscape or screening requirements. The proposed zoning code amendment proposes standards for defensible space and fuels reduction that would be implemented for new and rehabilitated landscape projects. The proposed landscape standards are primarily taken from the final recommendations report that was prepared for the Town by the Community Planning Assistance for Wildfire (CPAW) team.
4 OPTIONS ANALYSIS
Option 1: Waive the first reading and introduce by title only the Ordinance making the required CEQA and Municipal Code findings and approving Zoning Amendment 23-001 as recommended by the Planning and Economic Development Commission, or as modified by the Town Council. The proposed Zoning Code Amendment includes finding the project is exempt from additional environmental analysis pursuant to Public Resources Code Section 21083.3 and CEQA Guidelines Section 15183.
Option 2: Deny Zoning Code Amendment 23-001.
Option 1 would allow the Ordinance to proceed to a second reading on April 19, 2023. The Ordinance would become effective 30 days after the second reading.
Option 2 would not allow the Ordinance to be approved. The Town Council would need to make findings for denial. Findings for denial are the same as those for approval (Municipal Code Sections 17.112.060 and 17.116.060), but the finding would be inconsistency or noncompliance.
FINANCIAL CONSIDERATIONS:
Staff time for processing ZCA 23-001 is funded through the Town’s General Fund.
ENVIRONMENTAL CONSIDERATIONS:
Public Resources Code section 21083.3 and State CEQA Guidelines section 15183 mandate that projects consistent with the development densities established by existing zoning, community plan or General Plan policies for which an environmental impact report was certified shall not require additional environmental review except as might be necessary to examine whether there are significant environmental impacts peculiar to the project or otherwise not previously analyzed.
Based on this staff report, including its attachments, the Town’s General Plan, the Zoning Code, and all other evidence contained in the administrative record for this project, the Ordinance (Attachment 1) finds that this amendment to the Zoning Code is: (1) consistent with the development densities established by the General Plan; (2) does not have the potential to result in impacts peculiar to the project; (3) there are no other potential impacts of this amendment to the Zoning Code that were not addressed in the General Plan EIR; (4) there are no potentially significant off-site or cumulative impacts posed by this amendment to the Zoning Code that were not addressed in the General Plan EIR; and (5) substantial new information has not come to light that shows that impacts previously addressed will be more significant that described in the General Plan EIR.
Consequently, under Public Resources Code section 21083.3 and State CEQA Guidelines section 15183(c), no additional EIR or other environmental analysis is required.
LEGAL CONSIDERATIONS:
The proposed amendments to Municipal Code Section 17.52.055 - Accessory Dwelling Units and Section 17.52.100 - Child Day Care Facilities are necessary to maintain consistency with State law.
5 Public Notice for this application was published as a ¼ page advertisement in The Sheet on March 25, 2023, and April 1, 2023.
ATTACHMENTS:
Attachment 1: Town Council Ordinance 23-XX - Zoning Code Amendment 23-001 Attachment 2: Planning and Economic Development Commission Resolution 2023-04 Attachment 3: Planning and Economic Development Commission Staff Report dated February 14, 2023.
ORDINANCE NO. 23-___
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN MAMMOTH LAKES,
COUNTY OF MONO, STATE OF CALIFORNIA, APPROVING ZONING CODE AMENDMENT 23-001, AMENDING MUNICIPAL CODE TITLE 17 (ZONING) WHEREAS, a request for consideration of a Zoning Code Amendment was filed by the Town of Mammoth Lakes to amend Municipal Code Title 17, in accordance with Chapter
17.112 of the Town of Mammoth Lakes Municipal Code for the following sections of the zoning code:
• Section 17.52.055 (Accessory Dwelling Units) to revise height limits and reduce front setback requirements for accessory dwelling units (ADUs). This amendment will achieve compliance with State Legislative requirements imposed by Senate Bill 897 and Assembly Bill 2221.
• Section 17.52.100 (Child Day Care Facilities) to achieve compliance with the State legislative requirements imposed by Senate Bill SB 234 and clarify the standards applicable to the different categories of Child Care Facilities. • Chapter 17.40 (Water Efficient Landscape Regulations), to incorporate wildfire mitigation landscape standards applicable to new and rehabilitated landscape projects in accordance with General Plan Health and Safety Element Action Items S.5.A.2, S.5.A.3, and S.6.F.2.; and
WHEREAS, Town staff periodically prepares zoning code amendments applicable to the Zoning Code to maintain consistency with State law, clarify specific standards, and amend land use provisions, in accordance with Chapter 17.112 of the Town of Mammoth Lakes Municipal Code.
WHEREAS, the Planning and Economic Development Commission conducted a duly noticed public hearing on the application request on February 14, 2023, at which time the public hearing was opened and all those desiring to be heard were heard and the Commission determined that Zoning Code Amendment 23-001 is consistent with the General Plan and with the applicable provisions of the Town of Mammoth Lakes Municipal Code, Section 17.112, and, therefore, recommended approval of Zoning Code Amendment 23-001 to Town Council; and WHEREAS, on April 5, 2023, the Town Council conducted a duly noticed public hearing on Zoning Code Amendment 23-001, and considered testimony and materials in the staff report and accompanying documents and exhibits; and
WHEREAS, all legal prerequisites for the adoption of this Ordinance have occurred;
NOW THEREFORE, THE TOWN COUNCIL OF THE TOWN OF MAMMOTH
LAKES, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Recitals. The above recitals are all true and correct,
ORDINANCE NUMBER 23-__ Page 2 of 24
Section 2. Environmental Review. The Town Council makes the following findings and takes the following actions pursuant to the requirements of the California Environmental Quality Act (CEQA):
CEQA Findings - Public Resources Code section 21083.3 and State CEQA Guidelines section 151813:
A. Based on the information included in the accompanying staff report, the oral presentation by staff, other such written and oral evidence presented to the Town Council, and the administrative record for this amendment to the Zoning Code, the Town Council finds and determines that this amendment to the Zoning Code is exempt from further CEQA review pursuant to the Public Resources Code section 21083.3 and State CEQA Guidelines section 15183. This amendment is consistent with the land use designations and development densities established by the General Plan and analyzed in the certified General Plan EIR. Further, there are no potentially significant environmental impacts peculiar to this amendment to the Zoning Code or the sites to which this amendment to the Zoning Code applies.
Moreover, this amendment to the Zoning Code does not pose the potential for new off-site or cumulatively considerable impacts not previously analyzed in the General Plan EIR. Additionally, no substantial new information has come to light that was not known nor could have been known at the time the General Plan EIR was certified, showing that significant impacts identified by the General Plan EIR will be more adverse than previously determined. And finally, the Town Council finds and determines that all mitigation measures in the General Plan EIR shall apply to this amendment to the Zoning Code and are incorporated herein by this reference. Consequently, under Public Resources Code section 21083.3 and State CEQA Guidelines section 15183(c), no additional EIR or other environmental analysis need be prepared for this amendment to the Zoning Code.
B. CEQA Action: The Town Council directs staff to file a Notice of Exemption within five days of the adoption of this Ordinance.
Section 3. Findings. The Town Council HEREBY FINDS AND DETERMINES based on the information presented herewith:
FINDINGS FOR ZONING CODE AMENDMENT
(Municipal Code Section 17.112.060)
A. The proposed amendment is internally consistent with all other provisions of the General Plan and any applicable specific plan or master plan; The proposed zoning code amendment maintains consistency with the General Plan because the scope of the proposed amendments are intended to update existing standards applicable to accessory dwelling units and child day care facilities, to reflect changes in State Law. The proposed amendments to these sections of the zoning code also include the addition of clarifications where appropriate.
The proposed amendments to Chapter 17.40 - Water Efficient Landscape Regulations, implement three action items of the General Plan Public Health and Safety Element, which results in improved consistency between the Zoning Code and the General Plan.
ORDINANCE NUMBER 23-__ Page 3 of 24
B. The proposed amendment would not be detrimental to the public interest, health, safety, convenience, or welfare of the town; and The proposed amendment would not be detrimental to the public interest, health, safety, convenience, or welfare of the Town because the proposed amendment does not substantively alter the policies and intent of the General Plan or the Zoning Code and will provide increased transparency, for the public in understanding the standards that apply to accessory dwelling units, child day care facilities, as well as new and rehabilitated landscape projects.
The proposed amendments implement improvements to the public health and safety by providing greater flexibility in establishing or expanding State licensed child day care homes, and by adopting more flexible standards the promote the development of accessory dwelling units. The amendments to the water efficient landscape regulations also result in better implementation of wildfire risk-reduction strategies applicable to new and rehabilitated landscape areas on private property.
C. The proposed amendment is in compliance with the provisions of the California Environmental Quality Act (CEQA); and
The Public Resources Code section 21083.3 and State CEQA Guidelines section 15183 mandate that projects consistent with the development densities established by existing zoning, community plan or General Plan policies for which an environmental impact report was certified shall not require additional environmental review except as might be necessary to examine whether there are significant environmental impacts peculiar to the project or otherwise not previously analyzed.
Based on this staff report, including its attachments, the General Plan, the Zoning Code, and all other evidence contained in the administrative record for this project, the Town Council finds that the amendments to the Zoning Code are: (1) consistent with the development densities established by the General Plan; (2) do not have the potential to result in impacts peculiar to the project; (3) there are no other potential impacts of this amendment to the Zoning Code that was not addressed in the General Plan EIR; (4) there are no potentially significant off-site or cumulative impacts posed by this amendment to the Zoning Code that were not addressed in the General Plan EIR; and (5) substantial new information has not come to light that shows that impacts previously addressed will be more significant that described in the General Plan EIR.
D. Additional finding for Zoning Code Amendments: The proposed amendment is internally consistent with other applicable provisions of this Zoning Code.
The proposed zoning code amendment is intended to incorporate State mandated changes to specific development standards that may be applied to accessory dwelling units, as well as State mandated changes to land use standards that may be applied to child day care facilities. The scope of the text amendments results in clarification of existing standards, corrects minor errors and omissions, and increases flexibility within Sections 17.52.055, “Accessory Dwelling Units,” and 17.52.100, “Child Care Facilities.” The changes to these sections do not result in a conflict with any other provision of the Zoning Code.
The proposed amendment to the water efficient landscape regulations more clearly defines application and review requirements, and applicable landscape design standards which includes defensible space requirements within Chapter 17.40, “Water Efficient Landscape Regulations” in accordance with existing goals, policies and actions included in the Public Health and Safety Element of the General Plan. This
ORDINANCE NUMBER 23-__ Page 4 of 24
proposed amendment improves the Town’s ability to ensure that wildfire risk reduction strategies are incorporated into new and rehabilitated landscape projects on private property, which works in tandem with other applicable provisions of the Zoning Code.
Section 4. Approval. Based on the findings contained in this Ordinance and all other evidence in the record of proceedings in this matter, the Town Council hereby approves Zoning Code Amendment 23-001 and amends Municipal Code Title 17 as shown in attached Exhibits “A”, “B” and “C,” which is incorporated herein by this reference. The Town Council may rescind this Ordinance and any project approvals granted pursuant to any remedies and rights the Town may possess.
Section 5. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this Ordinance, or any part thereof, is held invalid or unconstitutional, then such decision shall not affect the validity of the remaining sections or portions of this Ordinance or part thereof. The Town Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance irrespective of the fact that any one or more sections, subdivisions, paragraphs, sentences, clauses or phrases may be declared invalid or unconstitutional.
Section 6. Effective Date. The Mayor shall sign and the Town Clerk shall certify passage and adoption of this Ordinance, and shall cause the same to be published and posted pursuant to the provisions of law in this regard, and this Ordinance shall take effect thirty days after its final passage.
ADOPTED, SIGNED and APPROVED this 19th day of April, 2023.
AYES:
NAYS:
ABSENT:
ABSTAIN:
ATTEST:
________________________________ ________________________________
JAMIE GRAY, JOHN WENTWORTH,
Town Clerk Mayor
17.52.055 Accessory Dwelling Units (ADUs)
A. Purpose and Applicability. This Section establishes standards for the development and operation of Accessory Dwelling Units (previously known as second dwelling units and hereafter referred to as “ADUs”) where allowed by Article II (Zoning Districts and Allowable Land Uses) and consistent with Government Code Section 65852.2 and 65852.22. An ADU that conforms to the development standards described herein is deemed to be an accessory use and the accessory dwelling unit(s) shall not count towards the overall density for the lot upon which it is located.
B. General Requirements. All ADUs shall be subject to the following requirements:
1. Primary Dwelling. ADUs are permitted as an accessory use only on lots or parcels containing a primary dwelling unit. If being constructed simultaneously with the primary dwelling unit, a certificate of occupancy for the ADU shall not be issued prior to the issuance of a certificate of occupancy for the primary dwelling unit.
2. Types of ADUs
a. Attached ADU. An ADU that is constructed as a physical expansion of an existing single-family dwelling and maintains at least one (1) wall in common with the existing single-family dwelling.
b. Interior ADU. An ADU that is either: (a) constructed within a new single-family dwelling unit; or (b) converted from existing space within the structure of an existing single-family or multi-family dwelling.
c. Detached ADU. An ADU that is located in a separate structure from the primary dwelling and does not share a common wall with the primary dwelling. d. Junior ADU (JADU). An ADU that is restricted to no more than five hundred (500) square feet in size and is contained entirely within a single-family dwelling.
3. Occupancy and Rental Requirements.
a. Short-term rental restriction. The short-term rental of an ADU for a period of thirty consecutive days or less is prohibited for all ADUs.
b. Owner occupancy. There are no owner-occupancy restrictions for long-term rentals of either the primary dwelling or the ADU for terms longer than 30 days.
On a parcel with a primary dwelling unit and a JADU, the owner-occupancy restrictions specified in Subsection C.5.d (JADU Occupancy Requirements) shall apply.
ORDINANCE NUMBER 23-__ Page 5 of 24
EXHIBIT “A”
Case No. ZCA 23-001
Amendments to the Zoning Code
(Additions are shown in Blue Underline text and deletions are shown in Red Strikeout text)
4. Sale of Unit Prohibited. No ADU shall be sold or otherwise conveyed separately from the primary dwelling unit.
5. Minimum Floor Area. An ADU shall have a minimum gross floor area of 150 square feet or the minimum required for an efficiency dwelling unit as defined in Section 17958.1 of the Health and Safety Code.
6. Required Facilities. All ADUs shall contain the following:
a. Kitchen. A kitchen separate from the primary dwelling unit, consistent with the definition of a kitchen specified in Chapter 17.148 of this Code; and b. Bathroom. A bathroom separate from the primary dwelling unit. JADUs may share bathroom facilities with the primary dwelling unit, so long as unrestricted interior access to the bathroom facility is always available.
7. Design Standards
a. Roof design and materials. When an ADU is constructed with reduced side or rear yard setbacks, where allowed by this Section, the pitch of any portion of the roof within the reduced setback area shall not be directed towards the side or rear property line(s), or the structure shall have a non-shedding roof material and/or an engineered snowslide restraint device for the life of the structure. b. Architectural Projections. When an ADU is constructed with reduced side or rear yard setbacks, where allowed by this Section, no portion of the structure, including the architectural features specified in Table 17.36.100 (Allowed Projections into Setbacks), shall be located closer than four (4) feet to the side and rear property lines.
8. Parking.
a. No parking is required for an ADU.
b. If a garage, carport, or covered parking structure providing required parking for a primary dwelling unit is demolished in conjunction with the construction of an ADU, or converted to an ADU, replacement parking for the lost off-street parking is not required.
c. To encourage the provision of parking for ADUs, one (1) additional on-site parking space for properties with an ADU may be located within a setback area, provided that the following criteria are met:
i. The maximum lot coverage allowance for the applicable zoning district is not exceeded;
ii. Snow storage on the property complies with the size and location requirements specified in Section 17.36.110 (Snow Storage); iii. The additional parking area is setback a minimum of five (5) feet from side property lines;
iv. The additional parking area shall be accessed by the same driveway as the primary dwelling unless a second driveway is approved pursuant to the “Residential Driveway Standards” for a second driveway specified in the Public Works Town Standards; and
v. Use of the setback to provide additional parking for an ADU shall require the property owner to indemnify and hold harmless the Town from any action or expense, including damage to vehicles as a result of snow removal, that may occur as a result of the use of the setback for parking. d. Nothing within this Section shall be deemed to permit on-street parking during any time when such parking is prohibited, including the on-street winter parking prohibition throughout Town from November 1 to April 30 (Section 10.12.100).
9. Building Code Requirements. Each ADU shall obtain a building permit from the Town and shall be constructed in compliance with all applicable California Building Standards Code and Mammoth Lakes Fire Protection District Code requirements. a. Fire sprinklers. An ADU is not required to have fire sprinklers if sprinklers are not required for the primary dwelling unit.
b. Manufactured home. A manufactured or modular unit that is permanently attached to a foundation and that complies with the California Building Standards Code may be used as an ADU in compliance with this section. A mobile home, recreational vehicle, or other movable habitable space (e.g., park model home, tiny home, etc.) that does not comply with the California Building Standards Code shall not be used as an ADU, unless it is modified to meet the aforementioned standards.
10. Illegal ADUs. This Section shall not validate any existing illegal ADUs, including unpermitted ADUs. To convert an illegal ADU to a legal, conforming unit, the standards and requirements for the conversion shall be the same as for a new ADU. For any illegal ADU built before January 1, 2020, upon an owner’s request, the city’s building official shall delay enforcing any building standards if the building official determines that correcting the violation is not necessary to protect health and safety. This provision shall sunset on January 1, 2025.
11. Deed restriction. Prior to issuance of a temporary or final certificate of occupancy for the ADU, recordation of a deed restriction in a form approved by the Town ensuring ongoing compliance with the applicable provisions of this Section shall occur.
12. ADU Removal. If an ADU is removed or converted to another use after a certificate of occupancy has been issued for the ADU, any deviations from development standards (e.g., setbacks, lot coverage, parking) or exemptions granted specific to the ADU use (e.g., reduced or exempt fees) shall be brought into compliance with the standards and regulations in effect at the time. Upon approval of the reversion request by the Town, the deed restriction applicable to the ADU shall be rescinded from title.
C. Requirements for ADUs Constructed on Lots with Single-Family Dwellings. In Zoning Districts where single-family residential uses are permitted and where an ADU is constructed on a lot or parcel containing an existing or proposed single-family dwelling, the following requirements shall apply in addition to the General Requirements specified in Section B above.
1. Number of Accessory Dwelling Units (ADUs) Allowed.
a. Where ADUs are permitted, in addition to the primary unit a property owner may construct one (1) ADU that is either Interior, Attached, or Detached. b. On properties with either a primary single-family dwelling or a primary singlefamily dwelling and a detached ADU not exceeding 800 square feet in size, one additional Junior Accessory Dwelling Unit (JADU) is permitted consistent with Section C.5 below.
2. Interior Accessory Dwelling Units
a. Access.
i. Interior ADUs shall have exterior access separate from the main entrance to the primary dwelling unit.
ii. Interior access between the Interior ADU and the primary dwelling unit shall be prohibited. An Interior ADU may have access to an attached garage only if the garage is entirely dedicated for use by residents of the ADU and if the garage is not accessible to the primary dwelling unit.
In the event practical difficulties and/or hardships result from the strict enforcement of the interior access prohibition, the Director may grant an exception to this requirement if it is determined that:
(1) The existing building design makes it impractical to close off the interior access or there is a substantial cost or other hardship associated with closing off the interior access; and
(2) It can be demonstrated that the unit will function as a complete independent living facility regardless of the provision of interior access.
The exemption request shall include any information determined necessary by the Director to make those determinations. b. Maximum Size. The gross floor area of the Interior ADU shall not exceed the greater of 50 percent of the primary dwelling habitable space or 850 square feet for a studio or one-bedroom unit or 1,000 square feet for a unit with more than one-bedroom, not to exceed 1,200 square feet.
c. Expansion for Ingress/Egress. Interior ADUs located within an existing singlefamily dwelling may include an expansion of the existing structure of up to 150 square feet for the purpose of accommodating ingress or egress to/from the ADU, provided that the expansion area is non-habitable space and not fully enclosed (e.g., front porch, covered stairway, breezeway, wheelchair ramp). This space:
i. shall be excluded from lot coverage limitations applicable to the property; and
ii. may encroach into required side or rear yard setbacks, but shall maintain a minimum setback of four (4) feet from the side and rear property lines.
d. New Construction. When an Interior ADU is constructed concurrently with a new single-family dwelling, the following shall apply in addition to the other standards in this Section:
i. lot coverage limitations shall not preclude the development of a maximum 800 square foot ADU; and
ii. portions of an Interior ADU constructed as part of a new single-family dwelling that do not exceed 16 feet in exterior building height may encroach into required side or rear yard setbacks, but shall maintain a minimum setback of four (4) feet from the side and rear property lines.
Any portion of an Interior ADU that exceeds 16 feet in exterior building height shall comply with the standard side and rear yard setbacks applicable to the property.
3. Attached Accessory Dwelling Units
a. Access.
i. Attached ADUs shall have exterior access separate from the main entrance to the primary dwelling unit.
ii. Interior access between the Attached ADU and the primary dwelling unit shall be prohibited. An Attached ADU may have access to an attached garage only if the garage is entirely dedicated for use by residents of the ADU and if the garage is not accessible to the primary dwelling unit.
In the event practical difficulties and/or hardships result from the strict enforcement of the interior access prohibition, the Director may grant an exception to this requirement if it is determined that:
(1) The existing building design makes it impractical to close off the interior access or there is a substantial cost or other hardship associated with closing off the interior access; and
(2) It can be demonstrated that the unit will function as a complete independent living facility regardless of the provision of interior access.
The exemption request shall include any information determined necessary by the Director to make those determinations. b. Maximum Size. The gross floor area of the Attached ADU shall not exceed the greater of 50 percent of the primary dwelling habitable space or 850 square feet for a studio or one-bedroom unit or 1,000 square feet for a unit with more than one-bedroom, not to exceed 1,200 square feet.
c. Rear and Side Setbacks and Height. Portions of an Attached ADU that do not exceed 2516 feet in exterior building height may encroach into required side or rear yard setbacks but shall maintain a minimum setback of four (4) feet from the side and rear property lines. Any portion of an Attached ADU that exceeds 2516 feet in exterior building height shall comply with the standard side and rear yard setbacks applicable to the property.
d. Front Setback. A minimum front setback standard shall not be applied if it would prohibit construction of an ADU, where there is no other feasible location on a parcel to allow for construction of an 800 square foot ADU that meets height limits and complies with four-foot side and rear setbacks.
e. Lot Coverage. Lot coverage limitations shall not preclude the development of a maximum 800 square foot Attached ADU. Attached ADUs that exceed 800 square feet in gross floor area shall comply with the lot coverage limitation applicable to the property.
4. Detached Accessory Dwelling Units
a. Maximum Size. A Detached ADU shall not exceed 1,200 square feet in gross floor area. Detached ADUs located on a lot that contains a JADU shall not exceed 800 square feet in gross floor area.
b. Side and Rear Setbacks and Height. Portions of a Detached ADU that do not exceed 186 feet in exterior building height may encroach into required side or rear yard setbacks, but shall maintain a minimum setback of four (4) feet from the side and rear property lines. Any portion of a Detached ADU that exceeds 186 feet in exterior building height shall comply with the standard side and rear yard setbacks applicable to the property. A Detached ADU can be up to two feet taller (for a maximum of 20 feet) if necessary to match the roof pitch of the ADU to that of the main house.
c. Front Setback. Front setback requirements cannot be used to prohibit construction of an ADU, where there is no other alternative to allow for construction of an 800 square foot ADU that meets height limits and complies with four foot side and rear setbacks.
d. Lot Coverage. Lot coverage limitations shall not preclude the development of a maximum 800 square foot Detached ADU. Detached ADUs that exceed 800 square feet in gross floor area shall comply with the lot coverage limitation applicable to the property.
e. Legal Nonconforming Setbacks for Conversions of Existing Structures. A legal nonconforming structure that is converted to a Detached ADU, or partially or completely demolished and replaced with a new Detached ADU structure, shall be in the same location and shall not exceed the dimensions of the original structure, including footprint, floor area, and height. The maximum gross floor area of the Detached ADU shall not exceed the size limitation specified above.
5. Junior Accessory Dwelling Units (JADU)
a. Access.
i. JADUs shall have exterior access separate from the main entrance to the primary dwelling unit.
ii. Interior Access from the JADU to the primary dwelling unit may be maintained; however, if the required bathroom facilities are shared with
the primary dwelling unit, unrestricted interior access to the bathroom facility is required at all times. If interior access is maintained, the tenant of the JADU shall be able to lock the shared door from the interior of the JADU for privacy.
b. Maximum Size. The gross floor area of the JADU shall not exceed 500 square feet and must be contained entirely within a single-family dwelling. No expansion of the single-family dwelling is permitted for the purposes of accommodating a JADU, except in instances where the expansion area complies with all general development standards applicable to the property.
c. Owner Occupancy Restriction. On a parcel with a primary dwelling unit and a JADU, only one (1) of the units may be rented on a long-term basis, and the owner must use the remaining portion of the primary dwelling or the JADU as their primary or seasonal residence. In instances when there is both a Detached ADU and a primary dwelling unit with a JADU, the owner occupancy requirement described herein shall only apply to the primary dwelling unit or the JADU.
D. Requirementsfor ADUs Constructed on Lots with Multi-Family Dwellings. In Zoning Districts where multi-family residential uses are permitted and where an ADU is constructed on a lot or parcel containing an existing multi-family residential use, the following requirements shall apply in addition to the General Requirements specified in Section B above.
1. Number of Accessory Dwelling Units (ADUs) Allowed.
a. A maximum of two (2) Detached ADUs; and/or
b. One (1) Interior ADU per existing multi-family residential structure or a number of Interior ADUs equal to 25 percent of the existing multi-family dwelling unit count, whichever is greater.
2. Detached Accessory Dwelling Units (ADU)
a. Maximum Size. The gross floor area of a Detached ADU shall not exceed 1,200 square feet.
b. Rear and Side Setbacks and Height. Portions of a Detached ADU on a parcel developed with one or more multi-family dwellings that do not exceed 186 feet in exterior building height may encroach into required side or rear yard setbacks, but shall maintain a minimum setback of four (4) feet from the side and rear property lines. Any portion of a Detached ADU that exceeds 186 feet in exterior building height shall comply with the standard side and rear yard setbacks applicable to the property.
b.c Front Setback. A minimum front setback standard shall not be applied if it would prohibit construction of an ADU, where there is no other feasible location to allow for construction of an 800 square foot ADU that meets height limits and complies with four foot side and rear setbacks.
c.d. Lot Coverage and Floor Area Ratio (FAR). Lot coverage limitations or floor area ratio (FAR) limitations, where applicable, shall not preclude the development of a
maximum of two (2) 800 square foot Detached ADU units. Detached ADUs that exceed 800 square feet in gross floor area shall comply with the lot coverage limitation or the FAR limitation applicable to the property. d.e. Legal Nonconforming Setbacks for Conversions of Existing Structures. A legal nonconforming structure that is converted to a Detached ADU or partially or completely demolished and replaced with a new Detached ADU structure shall be in the same location and shall not exceed the dimensions of the original structure, including footprint, floor area, and height. The maximum gross floor area of the Detached ADU shall not exceed the size limitation specified above.
3. Interior Accessory Dwelling Units (ADU)
a. Space Requirements. Non-habitable spaces (e.g., storage rooms, boiler rooms, passageways, attics, basements, garages, etc.) within existing multi-family residential structures may be converted to Interior ADUs, provided that the size of the unit complies with the minimum floor area specified in Section B.5 above and the space complies with the State building standards for a dwelling. No expansion of the multi-family residential structure(s) is permitted for the purposes of accommodating an ADU.
17.52.100 Child Day Care Facilities
Where allowed by Article II (Zoning Districts and Allowable Land Uses), child day care facilities shall comply with the standards in this section. This Section establishes standards for child day care facilities in compliance with State law (Health and Safety Code Sections 1596.70 et seq. and 1597.30 et seq.), in a manner that recognizes the needs of childcare operators and minimizes the effects on surrounding properties. These standards apply in addition to the other provisions of this Code and requirements imposed by the California State Department of Social Services. Child day care facilities shall meet all requirements of the California Building Standards Code and California Fire Code.
A. General requirements for all Child Day Care Facilities.
1. State licensing. Licensing by the California State Department of Social Services is required for all child day care facilities. The California Department of Social Services, Community Care Licensing Division (CCLD) evaluates family child care homes and determines whether they meet the health and safety requirements in order to be licensed by CCLD.
CCLD also conducts ongoing, unannounced inspections of all family child care homes and ensures child care providers meet the training requirements to care for children.
2. Noise. Child day care facilities shall comply with interior and exterior noise standards specified in Chapter 8.16 (Noise Regulation). Additionally, child day care facilities in residential zones shall operate only from 6 a.m. to 8 p.m. and may only conduct outdoor activities between the hours of 7 a.m. and 7 p.m.
3. Signs. Signs advertising a child day care facility in any residential zone shall be prohibited.
Signs advertising a child day care facility in zones other than residential zones shall be consistent with Chapter 17.48 (Signs).
B. Standards for large family day care. A large family day care is a facility in a single dwelling where an occupant of the residence provides family day care for seven to 14 children, including children under the age of 10 years who reside in the home.
1. Primary use as a residence required. The large family day care home shall be the principal residence of the day care provider, and the child care use shall be secondary to the use of the property as a residence.
2. On-site parking. In addition to the minimum on-site parking requirements for the residential use, one additional on-site parking space exclusively for the dropping off and picking up children, and one additional parking space for each employee not residing on the site shall be provided.
ORDINANCE NUMBER 23 -__ Page 13 of 24
EXHIBIT “B”
Case No. ZCA 23-001
Amendments to the Zoning Code
(Additions are shown in Blue Underline Text and deletions are shown in Red Strikeout Text)
3. Fire protection. The facility shall meet fire and life safety standards established by the State Fire Marshal for large family day care homes.
4. Outdoor activity areas.
a. Location. Outside activity areas shall not be located in the front or street side setback area.
b. Fencing. Outside activity areas shall be fenced and equipped with a self-closing and latching gate.
c. Snowshed. Outside activity areas used during winter conditions must be set back a minimum of 10 feet from snowshed impact areas of buildings on or off-site as defined in Title 15 of the Municipal Code. No permitted reduction of snowshed impact areas will be considered in establishing this setback.
B. Standards for small and large family day care homes. A small family day care is a facility in a single dwelling residence where an occupant of the residence provides family day care for eight or fewer children, including children under the age of 10 years who reside in the home. A large family day care is a facility is a single dwelling where an occupant of the residence provides family day care for seven to 14 children, including children under the age of 10 years who reside in the home.
The following standards shall apply to small and large family day care facilities.
1. Primary use as a residence required. The small family day care home shall be the principal residence of the day care provider, and the child care use shall be secondary to the use of the property as a residence. A single dwelling includes single-family homes, apartments, condos, townhouses, duplexes, and all other multi-family buildings (Group R-2 & R-3 occupancies).
2. Fire protection. The facility shall meet fire and life safety standards established by the State Fire Marshal for small and large family day care homes.
3. No Town license, land use/zoning permit, tax, or fee required. The Town shall not impose any business license, land use or zoning permit, fee, or tax for the privilege of operating a State licensed small or large family day care home consistent with State law.
C. Standards for child day care centers. The following standards shall apply to child day care centers.
1. Large family day care standards apply. The standards in Subsection 17.52.100.B. (Standards for large family day care), above, shall also apply to child day care centers.
1. Fire protection. The facility shall meet fire and life safety standards established by the State Fire Marshal for Child Day Care Centers.
2. On-site parking. On-site parking provided shall be a minimum of one on-site parking space per each full-time employee equivalent, plus one on-site parking space for each five children authorized by the State license.
3. Outdoor Activity Areas and Snowshed. Outside activity areas used during winter conditions must be set back a minimum of 10 feet from snowshed impact areas of buildings on or off-site as defined in Title 15 of the Municipal Code. No permitted reduction of snowshed impact areas will be considered in establishing this setback.
4. Separation. No child care center shall be located within 300 feet of an existing child care center.
TABLE 17.24.020: ALLOWED USES AND PERMIT REQUIREMENTS FOR COMMERCIAL ZONING DISTRICTS P: Permitted Use; U: Use Permit Required; A: Administrative Permit Required; - : Use Not Allowed; (#) Limitation Applies, See Footnote
Land Use D OMR MLR See Specific Use Regulations:
Residential Use Classifications
Single Family Dwelling - - -
Multi-family Residential P(1) P(1) P
See 17.52.210 (Multi-Family
Residential Projects)
See 17.52.110 (Condominium
Conversions)
Assisted Living Facility - P(1) P
See 17.52.260 (Residential Care
and Assisted Living Facilities)
Convalescent Home - U(1) -
Emergency Housing/Shelter - P(1) -
Family Day Care Home, Small and Large P(1) P(1) P
See 17.52.100 (Child Daycare
Facilities)
Live/Work Unit P(1) P(1) P(1)
See 17.52.110 (Condominium
Conversions)
See 17.52.150 (Live Work Units)
Residential Care Facility See subclassifications below
General - A(1) A
See 17.52.260 (Residential Care
and Assisted Living Facilities)
Limited P(1) P(1) P
Second Dwelling Unit P P P
See 17.52.270 (Second Dwelling
Units)
Single Room Occupancy - U(1) U
Supportive Housing See 17.52.290 (Transitional and Supportive Housing) Transitional Housing See 17.52.290 (Transitional and Supportive Housing) Specific Limitations:
1. Limited to no more than 75% of the ground floor area when located along Primary and Secondary Active frontages. A minimum of 25% of the ground floor area shall be occupied by uses permitted by right or by administrative permit (i.e. active uses) and shall occupy the building or structure’s frontage for a minimum depth of 20 feet (Administrative Permit required for depths less than 20 feet).
2. Limited to establishments with a gross floor area of 5,000 square feet or less when located on the ground floor along Designated Active Frontages. Administrative Permit required if greater than 5,000 square feet.
3. Limited to establishments with a gross floor area of 1,200 square feet or less when located on the ground floor along Designated Active Frontages.
4. Permitted if existing, no new fueling stations allowed.
5. Use shall be completely enclosed in a building of soundproof construction.
6. At least 50 percent of the ground floor Designated Active Frontages shall be occupied by retail or food service uses.
7. Limited to walk-in clientele when located on the ground floor along Designated Active Frontages.
8. Shall be located behind buildings or in structures where other uses are located in the portion of the structure along Designated Active Frontages.
9. Limited to establishments with a gross floor area of 5,000 square feet or less.
10. Allowed only as accessory to a hotel or motel or other lodging use. Administrative Permit required if primary use in OMR and MLR districts.
EXHIBIT “C”
Case No. ZCA 23-001
Amendments to the Zoning Code
(Additions are shown in Blue Underline Text and deletions are shown in Red Strikeout Text) Chapter 17.40 Water Efficient Landscape Regulations
17.40.010 Purpose
17.40.020 Applicability
17.40.030 Landscape and Irrigation Plans
17.40.040 General Requirements
17.40.050 Water Efficient Design and Compliance Options
17.40.060 Installation and Completion
17.40.070 Maintenance
17.40.080 Reporting
Purpose
The specific purposes of the water efficient landscape regulations are to:
A. Implement the Water Conservation in Landscaping Act and the 2015 California Model Water Efficient Landscape Ordinance (CA MWELO);
B. Reduce water waste in landscaping by promoting the use of alpine region-appropriate plants that require minimal supplemental irrigation, and by establishing standards for irrigation efficiency; C. Establish a structure for planning, designing, installing, maintaining, and managing water efficient landscapes in new construction and rehabilitation projects; D. Integrate “defensible space” into all new and rehabilitated landscape projects to reduce potential wildfire impacts on private property;
D.E. Promote rainwater capture and graywater use; and
E.F. Promote the effective and efficient irrigation of landscapes.
Applicability
A. The standards of this section apply to all of the following projects:
1. New construction projects with an aggregate landscape area equal to or greater than 500 square feet.
2. Rehabilitation landscape projects with an aggregate landscape area equal to or greater than 2,500 square feet.
ORDINANCE NUMBER 23 -__ Page 17 of 24
3. Existing landscapes that were installed before December 1, 2015 and are over one acre in size shall be subject to the provisions for existing landscapes provided for in Section
17.40.040.H.
B. Any landscape project with an aggregate landscape area of 500 – 2,500 square feet may comply with the performance requirements of this section or conform to the prescriptive measures contained in the Water Efficient Landscape Checklist.
C. For projects using treated or untreated graywater or rainwater captured on-site, any lot or parcel within the project that has less than 2,500 square feet of landscape and meets the lot or parcel’s landscape water requirement (Estimated Total Water Use) entirely with treated or untreated graywater or through rainwater captured on-site is subject only to the irrigation system requirements of the Water Efficient Landscape Checklist.
D. The following are exempt from the standards of this section when an applicant submits a WELO Exemption Form attesting to one of the following:
1. New construction with an aggregate landscape area less than 500 square feet.
2. Rrehabilitated landscape projects with an aggregate landscape area of less than 2,500 square feet.
23. Registered local, state, or federal historic sites.
34. Temporary irrigation systems utilized for three full growing seasons or less for purposes of ecological restoration, erosion/sedimentation control, and mine reclamation projects.
45. Community gardens or plant collections, as part of botanical gardens and arboretums open to the public.
46. Commercial cultivation of agricultural products, including but not limited to products of farms, orchards, production nurseries and forests.
Landscape and Irrigation Plans
A Landscape Documentation Package that complies with the requirements described in Section 17.40.040 shall be submitted with the permit application for all applicable projects, except for projects that are exempt pursuant to Section 17.40.020.D. When landscaping is proposed or required as part of a discretionary permit (i.e., use permit, tentative map, etc.), the application shall include a statement on the plans or a condition of approval shall be included that indicates compliance with the Town’s Water Efficient landscape Regulations shall be demonstrated at the building permit phase. For discretionary permits that will not entail subsequent building or grading permits, a fully compliant Landscape Documentation Package may be required as part of the discretionary permit process. The contents of the Landscape Documentation Package shall be drawn to scale and shall demonstrate landscape water efficiency pursuant to Section 17.40.050, Water Efficient Design and Compliance Options.
General Requirements
A. Defensible Space
1. All Landscape projects shall include a noncombustible area at least five-feet-wide that surrounds the base of structures. This noncombustible area may incorporate noncombustible materials such as crushed rock, steppingstones, gravel, stone pavers, bare earth, irrigated herbaceous plants, or a combination of these materials. This area shall be depicted and called out on all landscape plans. This noncombustible area shall be kept free of wood mulches.
2. Utilize boulders, stone, gravel, or other noncombustible materials within the landscape to create intermittent bare spaces (fire breaks). Noncombustible landscape features and materials shall be identified on all Landscape Plans.
3. Retained conifer trees located within 30-feet of a habitable structure shall be pruned to the highest roof deck height, or a maximum of 1/3 of the total tree crown height. Existing trees shall be pruned up and away from structures to provide at least 10-feet of separation from roofs and chimneys.
4. At least 10-feet of horizontal distance between individual tree crowns shall be maintained for retained conifer trees within 30 feet horizontal distance of a habitable structure.
5. Landscape materials that are listed on the Town’s prohibited planting list shall not be approved in new or rehabilitated landscape projects.
6. New plantings located within 30-feet of a structure shall not include plants listed on the Town’s high fire hazard plant list.
7. Plants on the recommended plant list should be used for required and desired landscape and screening; plants that are not on the list shall be submitted for review.
B. Plant Materials
1. Plants shall be selected appropriately based upon their adaptability to the climatic, geologic and topographical conditions of Mammoth Lakes. Native species and natural areas are to be protected and preserved to the extent possible. Generally, turf is discouraged. The planting of trees is encouraged wherever it is consistent with the other provisions of this chapter. Recommendations for plant materials that could meet the requirements of this section are included in the Mammoth Lakes Recommended Plant List found in the Making the Most of Every Drop users guide and methods to achieve water efficiency shall include one or more of the following:
a. Use the Sunset Western Climate Zone System which takes into account temperature, humidity, elevation, terrain, latitude, and varying degrees of continental influence on local climate;
b. Recognize the horticultural attributes of plants (i.e., mature plant size, invasive surface roots) to minimize damage to property or infrastructure (e.g., buildings, sidewalks, power lines) and allow for adequate soil volume for healthy root growth; and
c. Consider the solar orientation for plant placement to maximize winter solar gain.
2. Plants having similar water use should be grouped together by hydrozone (i.e. high, medium, low). Though not encouraged, plants of low and moderate water use may be planted in the same hydrozone, and plants of moderate and high water use may be planted
in the same hydrozone. Plants of low and high water use may not be planted in the same hydrozone. The Estimated Total Water Usage (Section 17.40.040. F) for these mixed areas shall assume a plant factor based on the proportions of the represented plant species or apply the plant factor of the least water efficient plant species (Refer to Making the Most of Every Drop user guide).
3. Plant materials and mulches will be in compliance with local Fire Codes. Fire prevention measures shall be addressed in areas that are fire prone as identified by The Mammoth Fire Severity Zone Map.
4. Turf shall not be planted on slopes greater than 25 percent.
5. No portions of turf areas shall be less than ten feet (10’) wide to prevent overspray.
6. Noxious weeds as identified by the USDA and invasive plant species as identified in by the California Invasive Plant Inventory are prohibited.
7. The landscape area shall be the sum of all the landscaped areas on the site per the definition in Section 17.148.020.
8. The landscape area shall use efficient water conservation practices and shall generally separate areas of similar slope, sun exposure, soil, and other site conditions appropriate for the selected plants. Refer to the Making the Most of Every Drop user guide.
9. High water use plants (including turf), characterized by a plant factor of 0.7 to 1.0, are prohibited in street medians.
10. The architectural guidelines of a common interest development, which include community apartment projects, condominiums, planned developments, and stock cooperatives, shall not prohibit or include conditions that have the effect of prohibiting the use of low-water plants as a group.
C. Soil Preparation and Mulch
1. Prior to the planting of any materials, compacted soils shall be transformed to a friable condition. On engineered slopes, only amended planting holes need meet this requirement.
2. For landscape installations, compost at a rate of minimum of four cubic yards per 1,000 square feet of permeable area shall be incorporated to a depth of six inches into the soil.
Soils with greater than 6% organic matter in the top 6 inches of soil are exempts from adding compost and tilling.
3. A minimum three-inch (3”) layer of mulch shall be applied on all exposed soil surfaces of non-turf planting areas, except for creeping or rooting groundcovers, direct seeding, and other applications where mulch is contraindicated. To provide habitat for beneficial insects and other wildlife, up to 5% of the landscape area may be left without mulch. Designated insect habitat must be included in the landscape design plan as such. Stabilizing mulching portion of the seed/mulch slurry in hydro-seeded applications shall meet the mulching requirement.
4. Organic mulch materials made from recycled or post-consumer materials shall be used instead of inorganic materials or virgin forest products unless the recycled post-consumer organic products are not locally available. Organic mulches are not required where prohibited by local Fire Codes.
5. When a Soil Management Report is required pursuant to the application requirements, the soil analysis recommendations shall be implemented and soil amendments shall be incorporated according to the report and what is appropriate for the plants selected.
D. Irrigation Specifications
This section applies to landscape areas requiring permanent irrigation, not areas that require temporary irrigation solely for the plant establishment period.
1. The irrigation system and its related components shall be planned and designed to allow for proper installation, operation, management, and maintenance. An irrigation system is expected to meet or exceed 75.0% efficiency for overhead spray devices and 81.0% efficiency for drip system devices, and be installed in compliance with the manufacturers’ recommendations.
2. All irrigation systems shall be designed to avoid runoff, low head drainage, overspray, or other similar conditions where water flows onto adjacent property, non-irrigated areas, walks, roadways, or structures.
3. Automatic irrigation controllers and sensors are required. Controllers may either be weather-based or soil moisture-based controllers utilizing non-volatile memory that automatically adjust irrigation in response to changes in plants' needs as weather conditions change. Sensors (rain, freeze, wind, etc.), either integral or auxiliary, shall be required and shall function to suspend or alter irrigation operation during unfavorable weather conditions.
4. Proper irrigation equipment and schedules, including features such as repeat cycles, shall be used to closely match application rates with soil type and soil infiltration rates in order to minimize runoff.
5. Low-volume irrigation shall be required in mulched areas to maximize water infiltration into the root zone. Narrow or irregular shaped areas that are less than ten feet (10’) in width in any direction shall be irrigated with subsurface irrigation or other means that produces no runoff or overspray. In areas with slopes greater than 25 percent, the area shall not be irrigated with an irrigation system with an application rate exceeding 0.75 inches per hour unless the landscape designer specifies an alternative design or technology, as part of the Landscape Documentation Package, and clearly demonstrates no runoff or erosion will occur. Prevention of runoff and erosion must be confirmed during the irrigation audit.
6. Pressure regulation is a key component in efficient irrigation system operation. Static pressure throughout the Town of Mammoth varies greatly due to many factors (e.g., topography, time of year, time of day, location of project in relationship to water source, etc.). Pressure regulation shall be required on all projects and set to 60 pounds per square inch unless the landscape plan demonstrates a need for higher pressure. The system shall
be designed to ensure that the dynamic pressure at irrigation feature is within the manufacturer’s recommended pressure range for optimal performance.
7. Overhead irrigation is prohibited within 24 inches of any non-permeable surface. If planted, only low-volume irrigation shall be allowed within the 24-inch setback.
8. Recirculating water shall be used for decorative water features. Surface area of a water feature shall be included in the high-water use hydrozone area of the water budget calculation.
9. Backflow prevention devices shall be required to protect the water supply from contamination by the irrigation system.
10. Irrigation systems for non-residential landscapes and residential landscapes of 5,000 square feet or larger shall include flow sensors that detect high flow conditions created by system damage or malfunction.
11. Master shut-off valves are required on all landscape projects except landscapes that make use of technologies that allow for the individual control of sprinklers that are individually pressurized in a system equipped with low pressure shut down features.
12. Manual shut-off valves (such as a gate valve, ball valve, or butterfly valve) shall be required, as close as possible to the point of connection of the water supply, to minimize water loss in case of an emergency or routine repair.
13. Check valves or anti-drain valves are required on all sprinkler heads where low point drainage could occur.
14. The design of the irrigation system shall conform to the hydrozones of the landscape design plan and each valve shall irrigate a hydrozone with similar site, slope, sun exposure, soil conditions, and plant materials with similar water use. Sprinkler heads and other emission devices shall be selected based on what is appropriate for the plant type within that hydrozone.
15. Sprinkler heads shall have matched precipitation rates within each control circuit valve and shall be selected for proper coverage and precipitation rate. Head to head coverage is recommended and sprinkler spacing shall be designed to achieve the highest possible distribution uniformity using the manufacture’s recommendations.
16. Swing joints or other riser-protection components are required on all risers subject to damage that are adjacent to hardscapes or located in high traffic areas.
17. Where feasible, trees shall be placed on separate valves form shrubs, groundcovers, and turf to facilitate the appropriate irrigation of trees. The mature size and extent of the root zone shall be considered when designing irrigation for the tree.
18. All irrigation emission devices must meet the requirements set in the American National Standards Institute (ANSI) standard, American Society of Agricultural and Biological Engineers/International Code Council’s ( ASABE /ICC) 802 -2014 “Landscape Irrigation Sprinkler and Emitter Standard.” All sprinkler heads installed in the landscape must
document a distribution uniformity low quarter of 0.65 or higher using the protocol defined in the ASABE/ICC 802-2014.
E. Mammoth Community Water District (MCWD) Served Connections
1. Separate landscape water meters, defined as either a dedicated water service meter or private submeter, shall be installed for all non-residential irrigated landscapes of 1,000 square feet, but not more than 5,000 square feet (the level at which Water Code 535 applies) and residential irrigated landscapes of 5,000 square feet or greater, or as required by MCWD Code if the MCWD Code has more stringent standards. A landscape water meter may be either a customer service meter dedicated to landscape use provided by the MCWD or a privately owned meter or submeter.
2. When a landscape has a separate water meter the irrigation system and decorative water features shall be designed to allow for the current and future use of recycled water and shall use recycled water. Compliance or exemption shall be documented via a written letter from the MCWD, that details compliance or states that recycled water meeting all public health codes and standards is not available and will not be available for the foreseeable future.
3. Program settings for irrigation controllers shall comply with MCWD watering regulations.
4. All irrigation shall be subject to regulations and restrictions put forth by the MCWD.
F. Maintenance. A regular maintenance schedule shall be submitted as part of the Landscape Documentation Package. Landscapes shall be maintained to ensure water efficiency. A regular maintenance schedule shall include, but not be limited to: testing, adjusting and repairing backflow prevention devices, pressure regulating devices and irrigation equipment; resetting the automatic controller; aerating and dethatching turf areas; replenishing mulch; fertilizing; pruning and weeding in all landscaped areas. Refer to Section 17.40.070.
G. Water Budget Worksheet. When a Landscape Documentation Package is required, the project applicant shall complete the Water Budget Worksheet contained within the Landscape Documentation Package application which contains information on the plant factor, irrigation method, irrigation efficiency, and area associated with each hydrozone. Calculations are then made to show that the evapotranspiration adjustment factor (ETAF) for the landscape project does not exceed a factor of 0.55 for residential areas and 0.45 for non-residential areas, exclusive of Special Landscape Areas (SLAs). The ETAF for a landscape project is based on the plant factors and irrigation methods selected. The Maximum Applied Water Allowance (MAWA) is calculated based on the maximum ETAF allowed (0.55 for residential areas and 0.45 for non-residential areas) and expressed as annual gallons required. The Estimated Total Water Use (ETWU) is calculated based on the plants used and irrigation method selected for the landscape design. ETWU must be below the MAWA.
1. In calculating the Maximum Applied Water Allowance (MAWA) and Estimated Total Water Use (ETWU), a project applicant shall use the Evapotranspiration (ETo) value for Mammoth Lakes, which is thirty-three inches.
2. Water budget calculations shall adhere to the following requirements:
a. The plant factor (PF) value may be found in the Making the Most of Every Drop users guide, or for more specific information the WUCOLS publication, or may be more precisely determined by a landscape professional, with consideration of sitespecific soil and microclimate conditions. The PF ranges from 0 to 0.1 for very low water using plants, 0.1 to 0.3 for low water use plants, 0.4 to 0.6 for moderate water use plants, and from 0.7 to 1.0 for high water use plants. b. All water features shall be included in the high water use hydrozone and temporarily irrigated areas shall be included in the low water use hydrozone. c. All Special Landscape Areas (SLAs) shall be identified and their water use calculated. ETAF for new and existing (non-rehabilitated) SLAs shall not exceed
1.0. H. Graywater Systems. Graywater systems are encouraged for on-site landscape irrigation. All gray water systems shall conform to the California Plumbing Code (Title 24, Part 5, Chapter 16) and any requirements of the town and/or MCWD.
I. Existing Landscapes Over One Acre in Size. For existing landscapes over one acre in size that have a landscape water meter, the town and/or MCWD shall administer programs that may include, but not be limited to, irrigation water use analyses, irrigation surveys, and irrigation audits to evaluate water use and provide recommendations as necessary to reduce landscape water use to a level that does not exceed the Maximum Applied Water Allowance for existing landscapes. The Maximum Applies Water Allowance for existing landscapes shall be calculated as: MAWA = (0.8) (ETo) (LA) (0.62). For existing landscapes over one acre in size that do not have a landscape water meter, the town and/or MCWD shall administer programs that may include, but not be limited to, irrigation surveys and irrigation audits to evaluate water use and provide recommendations as necessary in order to prevent water waste.
J. Other Information. Other information determined necessary by the Director.
END of Section 17.40.030 – Landscape and Irrigation Plans
Mammoth Lakes Town Council
Agenda Action Sheet
Title: Approve the Innsbruck Lodge Affordable Housing Project Grant Agreement with Mammoth Lakes Housing, Inc.
Council Meeting Date: 4/19/2023
Prepared by: Nolan Bobroff, Senior Planner / Housing Coordinator Recommended Motion: Approve the Innsbruck Lodge Affordable Housing Grant Agreement with Mammoth Lakes Housing, Inc.
Summary: In January 2022, the Town, together with Mammoth Lakes Housing, Inc. (MLH), submitted an application to the State’s Homekey Program1for the acquisition and rehabilitation of the Innsbruck Lodge located at 913 Forest Trail into a 16-unit affordable housing project (15 affordable units and 1 manager’s unit). The Town and MLH were successful in the grant application and an award announcement was made in May 2022 followed up by the acquisition of the property in August 2022. Rehabilitation (demolition and interior renovations) work is currently underway, and occupancy is expected in late-2023.
As a part of the application, the Town committed a $1M grant towards the project and Mono County committed an additional $550K. Due to increasing construction costs and a more refined scope-of-work, the overall cost of the project increased, and the Town committed an additional $400K grant towards the project in February 2023, that is to be used only if needed and if all other funding sources have been exhausted.
To memorialize the financial commitments from both the Town and the County to the project and to clearly articulate the terms and conditions of the grants, grant agreements between all parties will be executed and recorded on title. The proposed agreement between the Town and MLH has been reviewed by the Town Attorney, and all requested revisions to the agreement have been made.
The County will enter into a separate grant agreement with MLH; however, the form and content of the agreement is the same as the Town’s agreement.
The term of the Town’s grant agreement is for 15 years from the Project completion date (i.e., the date that a certificate of occupancy is issued), which mirrors the term of the State’s Standard Agreement for the project. The agreement outlines, amongst other things, the terms and conditions for forgiveness of the grant, conditions for disbursing the grant funds, events of default, and operating requirements.
1 The Homekey Program is a State housing financial assistance program that is intended to rapidly expand the inventory of housing for people who are experiencing homelessness or at risk of homelessness and who are, thereby, inherently impacted by or at increased risk for medical diseases or conditions due to the COVID-19 pandemic or other communicable diseases. Homekey is an opportunity for state, regional, and local public entities to develop a broad range of housing types, including but not limited to hotels, motels, hostels, single-family homes and multifamily apartments, adult residential facilities, and manufactured housing, and to convert commercial properties and other existing buildings to Permanent or Interim Housing for the Target Population.
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TOWN GRANT AGREEMENT
Between
TOWN OF MAMMOTH LAKES
and
INNSBRUCK LODGE AFFORDABLE HOUSING, LLC
(Innsbruck Lodge - Town Grant)
TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS AND EXHIBITS ............................................................................. 2 Section 1.1 Definitions................................................................................................... 2 Section 1.2 Exhibits. ...................................................................................................... 6 ARTICLE 2. GRANT PROVISIONS ............................................................................................ 6 Section 2.1 Grant. .......................................................................................................... 6 Section 2.2 Security. ...................................................................................................... 6 Section 2.3 Forgiveness of Revocable Grant. ................................................................ 6 Section 2.4 Revocation of Grant Upon Default. ............................................................ 6 Section 2.5 Interest on Default....................................................................................... 7 Section 2.6 Non-Recourse. ............................................................................................ 7 Section 2.7 Conditions Precedent to Disbursement of Grant Funds. ............................. 7 ARTICLE 3. GRANTEE OBLIGATIONS .................................................................................... 8 Section 3.1 Schedule of Performance. ........................................................................... 8 Section 3.2 Conversion and Rehabilitation. ................................................................... 9 Section 3.3 Prevailing Wages; Accessibility. ................................................................ 9 Section 3.4 Inspections. ............................................................................................... 10 Section 3.5 Approved Financing Plan. ........................................................................ 11 Section 3.6 Services Plan and Budget.......................................................................... 11 ARTICLE 4. GRANT REQUIREMENTS ................................................................................... 11 Section 4.1 Annual Operating Budget. ........................................................................ 11 Section 4.2 Information. .............................................................................................. 11 Section 4.3 Records. .................................................................................................... 12 Section 4.4 Town Audits.............................................................................................. 13 Section 4.5 Town Grant Requirements. ....................................................................... 13 Section 4.6 Hazardous Materials. ................................................................................ 14 Section 4.7 Maintenance and Damage. ........................................................................ 15 Section 4.8 Fees and Taxes. ......................................................................................... 15 Section 4.9 Notice of Litigation. .................................................................................. 16 Section 4.10 Operation of Development as Affordable Housing. ................................. 16 Section 4.11 Nondiscrimination..................................................................................... 16 Section 4.12 Transfer. .................................................................................................... 17 Section 4.13 Insurance Requirements. ........................................................................... 17 Section 4.14 Anti-Lobbying Certification. .................................................................... 21 Section 4.15 Covenants Regarding Approved Financing. ............................................. 21 Section 4.16 Affordability and Project Monitoring. ...................................................... 22 ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF BORROWER ......................... 23 Section 5.1 Representations and Warranties of Grantee. ............................................. 23
TABLE OF CONTENTS
Page
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ARTICLE 6. DEFAULT AND REMEDIES ................................................................................ 25 Section 6.1 Events of Default. ..................................................................................... 25 Section 6.2 Remedies. .................................................................................................. 26 Section 6.3 Right of Contest. ....................................................................................... 28 Section 6.4 Remedies Cumulative. .............................................................................. 28 ARTICLE 7. GENERAL PROVISIONS ..................................................................................... 28 Section 7.1 Relationship of Parties. ............................................................................. 28 Section 7.2 No Claims. ................................................................................................ 28 Section 7.3 Indemnification. ........................................................................................ 29 Section 7.4 Non-Liability of Town Officials, Employees and Agents. ....................... 29 Section 7.5 No Third-Party Beneficiaries. ................................................................... 29 Section 7.6 Conflict of Interest. ................................................................................... 29 Section 7.7 Notices, Demands and Communications. ................................................. 30 Section 7.8 Amendments. ............................................................................................ 30 Section 7.9 Town Approval. ........................................................................................ 31 Section 7.10 Applicable Law and Venue. ...................................................................... 31 Section 7.11 Parties Bound. ........................................................................................... 31 Section 7.12 Attorneys' Fees. ......................................................................................... 31 Section 7.13 Severability. .............................................................................................. 31 Section 7.14 Force Majeure. .......................................................................................... 31 Section 7.15 Waivers. .................................................................................................... 32 Section 7.16 Title of Parts and Sections. ....................................................................... 32 Section 7.17 Entire Understanding of the Parties. ......................................................... 32 Section 7.18 Multiple Originals; Counterpart. ............................................................... 32 Section 7.19 Action by the Town. ................................................................................. 32 Exhibit A: Legal Description of the Property
Exhibit B: Approved Financing Plan
Exhibit C: Schedule of Performance
Exhibit D: Form of Use Restriction
Exhibit E: Participant Selection Plan
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1 TOWN GRANT AGREEMENT
(Innsbruck Lodge –Town Grant)
This Town Grant Agreement (the "Agreement") is dated as of April ___, 2023 (the "Effective Date"), and is between the Town of Mammoth Lakes, a municipal corporation (the "Town") and Innsbruck Lodge Affordable Housing, LLC, a California limited liability company ("Grantee"), a controlled affiliate of Mammoth Lakes Housing, Inc, a California nonprofit public benefit corporation.
RECITALS
A. Defined terms used but not defined in these recitals are as defined in Article 1 of this Agreement.
B. The Department of Housing and Community Development ("HCD") issued a Round 2 Notice of Funding Availability ("NOFA") for the Homekey Program, established by California Health and Safety Code Section 50675.1.1 (the "Homekey Program"), on September 9, 2021. The NOFA incorporates by reference the Multifamily Housing Program (“MHP”), as well as the MHP Final Guidelines ("MHP Guidelines"), dated June 19, 2019, both as amended and in effect from time to time. In addition, the NOFA states that Homekey grant funds are derived primarily from the Coronavirus Fiscal Recovery Fund (CSFRF), established by the American Rescue Plan Act of 2021 (ARPA) (Public Law 117-2).
C. The Homekey Program was established during the COVID-19 Pandemic to assist Homeless Households and At Risk of Homelessness Households impacted by COVID-19.
Through its September 9, 2021 NOFA, HCD considers Homeless Households and At Risk of Homelessness Households to be inherently impacted by the COVID-19 Pandemic ("Target Population").
D. The Town and the Grantee jointly applied and were awarded Homekey Funds from HCD which shall be disbursed pursuant to the terms of Standard Agreement No. 21-HK17233, dated May 15, 2022, by and among HCD, the Town and the Grantee, which shall govern the expenditure of the Homekey Funds (the "Standard Agreement").
E. The Grantee owns a fee title interest in certain real property located at 913 Forest Trail, Mammoth Lakes, California (APN-033-041-006-000), as more particularly described in Exhibit A (the "Property"). As of the date of acquisition, the Property is improved with seventeen (17) hotel rooms and one (1) manager’s unit, which will be converted into fifteen (15) affordable apartments and one (1) manager’s unit (the "Improvements"). The Property and Improvements are referred to in this Agreement as the "Development." F. The Grantee and the Town intend for the Development to be used as Permanent Housing.
G. The Town desires to make a revocable grant to Grantee in an amount not to exceed One Million Four Hundred Thousand Dollars ($1,400,000) from the Town's general fund funds ("Town Funds") to fund the rehabilitation of the Development (the "Grant").
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2 H. Pursuant to the terms of the Standard Agreement, the Town is required to cause a 55-year use restriction to be recorded against the Property in first lien priority (the "Use Restriction") to secure performance under the Standard Agreement. A copy of the form of Use Restriction is attached as Exhibit D.
I. The Grant is being made to finance the rehabilitation of the Development. The Development will increase the supply of affordable rental housing in the Town of Mammoth Lakes.
J. Pursuant to the California Environmental Quality Act (“CEQA”, California Public Resources Code §21000 et seq.) and its implementing guidelines, the Town prepared, reviewed, and approved the Notice of Exemption under 14 CCR 15268 because this Development is a Streamlined Infill Project that satisfies the objective planning standards set forth in Senate Bill 35 (SB-35)(Government Code Section 65913.4(a)) and is subject to the streamlined ministerial approval process provided in Government Code Section 65913.4(b) and (c). The proposed project is therefore a ministerial project that is statutorily exempt from CEQA pursuant to Public Resources Code Section 21080(b)(1) and Government Code Section 65913.4.
K. HCD announced that the Homekey Funds are not subject to the National Environmental Policy Act ("NEPA"). The Town has not committed and is not using any federal funds to fund the Grant, thus the Town has determined that no NEPA review is required.
WITH REFERENCE TO THE FACTS RECITED ABOVE, the Town and the Grantee (collectively, the "Parties") agree as follows:
AGREEMENT
ARTICLE 1.
DEFINITIONS AND EXHIBITS
Section 1.1 Definitions.
The following terms have the following meanings:
(a) "30% AMI Household" means a household whose Adjusted Income does not exceed 30% of Area Median Income.
(b) "Affiliate" means an entity that is controlling or controlled by Grantee.
For the purposes of this definition "Control" means (1) direct or indirect management or control of the managing member or members in the case of a limited liability company; (2) direct or indirect management or control of a general partner or general partners in the case of a partnership; and (3) direct or indirect control of a majority of the directors in the case of a corporation.
(c) "Agreement" means this Town Grant Agreement, as such may be amended from time to time.
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3 (d) "Approved Financing" means all of the following loans, grants and equity obtained by Grantee and approved by the Town for the purpose of financing the Development, in addition to the Grant, which include the following, estimated as of the Effective Date:
(1) A grant of approximately Four Million Five Hundred Sixty Thousand Dollars ($4,560,000) of Homekey program funding from HCD (the "Homekey Acquisition Funds") or such other amount approved by HCD; and (2) A grant of Five Hundred Fifty Thousand Dollars ($550,000) from the County of Mono ("County") from the County's general fund for acquisition and rehabilitation.
(e) "Approved Financing Plan" means the Financing Plan approved by the County as of the date of this Agreement, attached to this Agreement as Exhibit B, incorporated herein by this reference, as the same may be amended pursuant to Section 3.5. The Approved Financing Plan shall be updated at the Close of Escrow without need for amendment of this Agreement.
(f) “Area Median Income” means the median gross yearly income, adjusted for Actual Household Size as specified herein, in the County of Mono, California as published from time to time by HUD. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the Town shall provide other income determinations that are reasonably similar with respect to methods of calculation to those previously published by HUD.
(g) "At Risk of Homelessness Household" means a household that is at risk of homelessness, as defined in Section 578.3 of Title 24 of the Code of Federal Regulation. The definition of At Risk of Homeless Households under 24 CFR 578.3 includes limited requirements that an individual or family also qualify as a 30% AMI Household. (h) "CEQA" has the meaning set forth in Paragraph J of the Recitals. (i) "Certificate of Occupancy" means the final certificate of completion or certificate of occupancy issued by the Town of Mammoth Lakes, or comparable Town sign-off on the completion of conversion of the Development.
(j) "Closing Date" means the date that Grantee acquires title to the Property and all deeds of trust associated with Approved Financing as shown on the Approved Financing Plan are recorded against the Grantee's fee interest in the Property. (k) "Completion Date" means the date that a Certificate of Occupancy, or equivalent document is issued by the Town to certify completion of the rehabilitation and conversion of the Development.
(l) "Default Rate" has the meaning set forth in Section 6.2(a)(6). (m) "Development" has the meaning set forth in Paragraph E of the Recitals.
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4 (n) "Escrow" means the escrow account established by the Grantee for the closing of Development financing with Inyo-Mono Title Company in its Bishop office, located at 873 North Main Street, Bishop, CA 93514, or another escrow company satisfactory to the Town. (o) "Event of Default" has the meaning set forth in Section 6.1. (p) "Grant" has the meaning set forth in Paragraph G of the Recitals. (q) "Grant Documents" means this Agreement, and the Use Restriction. (r) "Grantee" has the meaning set forth in the first paragraph of this Agreement.
(s) "Hazardous Materials" has the meaning set forth in Section 4.6. (t) "Hazardous Materials Claims" has the meaning set forth in Section 4.6. (u) "Hazardous Materials Law" has the meaning set forth in Section 4.6. (v) "HCD" has the meaning set forth in Paragraph B of the Recitals. (w) "Homekey" has the meaning set forth in Paragraph B of the Recitals. (x) "Homekey Funds" means the Homekey Acquisition Funds provided by HCD under the Standard Agreement.
(y) "Homekey Term" means the period beginning on the date of this Agreement and ending on the fifteenth (15th) anniversary of the Completion Date. (z) "Homekey Regulations" has the meaning set forth in Paragraph B of the Recitals.
(aa) "Homeless Household" means individuals and families who are experiencing homelessness, as defined in Section 578.3 of Title 24 of the Code of Federal Regulations.
(bb) "Improvements" has the meaning set forth in Paragraph E of the Recitals. (cc) "Management Plan" has the meaning set forth in Section 3.2 of the Use Restriction.
(dd) "Memorandum of Agreement" means the Memorandum of Agreement to be recorded against the Property, attached hereto as Exhibit F, incorporated herein by this reference.
(ee) "Notice of Completion" means the Notice of Completion executed by Grantee in the form specified in California Civil Code Section 8182.
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5 (ff) "Operating Agreement" means the Operating Agreement executed by the members of Grantee, as may be amended pursuant to the requirements of Section 7.8 hereof. (gg) “Participant Selection Plan” means the Selection Plan, as such may be amended from time to time by the Eastern Sierra Continuum of Care, which contains a prioritization system based on greatest need, attached hereto as Exhibit E, incorporated herein by this reference. The parties agree and acknowledge that the Eastern Sierra Continuum of Care may amend the Participant Selection Plan without need to amend this Agreement and any such amendments shall be incorporated herein by this reference. (hh) "Permanent Housing" means housing, dwellings, or other living accommodations where the landlord does not limit the tenant’s length of stay or restrict the tenant’s movements and where the tenant has a lease and is subject to the rights and responsibilities of tenancy under California Civil Code Section 1940 et seq. (ii) "Permitted Transfer" has the meaning set forth in Section 4.12(c). (jj) "Program Participant" means a person or household which is a member of the Target Population that occupies a Unit in the Development. (kk) "Property" has the meaning set forth in Paragraph E of the Recitals. (ll) "Risk Management" means the persons or department designated by the Town to conduct risk management.
(mm) "Schedule of Performance" means the schedule for performance of various tasks and obligations under this Agreement that is attached as Exhibit C, as such may be modified pursuant to Section 3.1.
(nn) "Services Budget" has the meaning set forth in Section 3.6. (oo) "Services Plan" has the meaning set forth in Section 3.6. (pp) "Standard Agreement" has the meaning set forth in Recital D. (qq) “Target Population” has the meaning set forth in Recital C. (rr) "Term" means the period of time that commences on the date of this Agreement, and expires, unless sooner terminated in accordance with this Agreement, on the fifteenth (15th) anniversary of the Completion Date.
(ss) "Town" has the meaning set forth in the first paragraph of this Agreement. (tt) "Town Council" refers to the town council of the Town of Mammoth Lakes.
(uu) "Town Executive Officer" refers to the Town Manager of the Town of Mammoth Lakes, or an authorized designee.
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6 (vv) "Transfer" has the meaning set forth in Section 4.12. (ww) "Unit" means one (1) of the approximately sixteen (16) affordable housing units to be constructed at the Development, including one (1) unrestricted manager's unit. (xx) "Use Restriction" has the meaning set forth in Recital H.
Section 1.2 Exhibits.
The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference:
Exhibit A: Legal Description of the Property
Exhibit B: Approved Financing Plan
Exhibit C: Schedule of Performance
Exhibit D: Form of Use Restriction
Exhibit E: Participant Selection Plan
Exhibit F: Memorandum of Agreement
ARTICLE 2.
GRANT PROVISIONS
Section 2.1 Grant.
Subject to the satisfaction of the conditions set forth in this Article, the Town shall provide to Grantee the Grant, which the Grantee may use solely to fund the acquisition and construction of the Improvements for the Homekey Term, consistent with the terms of the Use Restriction and the Standard Agreement. Except as set forth in Section 2.4, Grantee has no obligation to repay the Grant.
Section 2.2 Security.
Grantee shall also cause or permit the Use Restriction to be recorded against the fee interest in the Property, in first lien position. The Use Restriction shall not be subordinated.
Section 2.3 Forgiveness of Revocable Grant.
Provided that no Default exists under this Agreement or the Use Restriction, without further action of the parties, the Grant shall be forgiven upon expiration of the Homekey Term.
Section 2.4 Revocation of Grant Upon Default.
Notwithstanding any provision herein to the contrary, and in addition to any other rights and remedies available to the Town set forth in Article 6, upon a Default by Grantee, the Town may revoke the outstanding balance of the Grant, and declare the outstanding balance of the Grant (other than any portion of the Grant that has been previously forgiven by the Town as set
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7 forth in Section 2.3 above) plus interest thereon to be immediately due and payable, subject to the non-recourse provisions set forth in Section 2.6.
Section 2.5 Interest on Default. In the event of a Default, interest on the Grant shall begin to accrue, as of the date of Default and continuing until such time as the outstanding balance of the Grant funds are repaid in full (other than any portion of the Grant that has been previously forgiven by the Town as set forth in Section 2.3 above) or the Default is cured, at the default rate of the lesser of ten percent (10%), compounded annually, or the highest rate permitted by law.
Section 2.6 Non-Recourse. Neither Grantee nor any member of Grantee shall have any direct or indirect personal liability for payment of the principal of, and interest on, the Grant or the performance of the covenants of Grantee under this Agreement. The sole recourse of Town with respect to the principal of, and default interest, if any, on the outstanding balance of the Grant, and defaults by Grantee in its performance of its covenants under the Use Restriction, shall be to enforce the remedies under this Agreement, and in no event shall the Town be entitled to, or seek, a deficiency judgment.
Section 2.7 Conditions Precedent to Disbursement of Grant Funds. (a) The Town shall disburse the Town Grant in two or more installments, but shall have no obligation to make any disbursements or to take any other action under the Grant Documents unless the following conditions precedent are satisfied prior to each such disbursement of the Grant funds.
(1) There exists no Event of Default nor any act, failure, omission or condition that would constitute an Event of Default under this Agreement, or any other financing agreements or contracts between the Town and Grantee, or their affiliates relating to the Development;
(2) Grantee has delivered to the Town a copy of Grantee's organizational documents, including an Operating Agreement, and a corporate authorizing resolution authorizing Grantee's execution of this Agreement and the transactions contemplated by this Agreement;
(3) Grantee has caused to be executed and delivered to the Town all of the Grant Documents and any other instruments, and policies required under the Grant Documents;
(4) The Town has received and approved the Approved Financing Plan;
(5) Grantee has executed the Standard Agreement;
(6) Grantee has furnished the Town with evidence of the insurance coverage meeting the requirements of Section 4.13 below;
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8 (7) The Use Restriction has been recorded against the Grantee's fee interest in the Property in the Office of the Recorder of the County of Mono in first lien position, in accordance with the terms of this Agreement, and recorded copies have been arranged to be delivered to the Town;
(8) The Town has received from Grantee a copy of the Management Plan, and a management agreement and contact information for the property manager of the Development and the name and phone number of the on-site property manager, in compliance with the terms of the Use Restriction;
(9) There exists no material adverse change in the financial condition of Grantee from that shown by the financial statements and other data and information furnished by Grantee to the Town prior to the date of this Agreement; (10) The Town has received a written draw request from the Grantee including certification that the condition set forth in Section 2.7(a)(1) continues to be satisfied, and certifying the proposed uses of funds is consistent with the limitations set forth in Section
2.1, above, and will be used solely for Units occupied by an income eligible household from the Target Population.
(11) For disbursements of the Grant proceeds up to One Million Dollars ($1,000,000) (the “Initial Grant Component”), only conditions 1-10 listed above shall apply. For any disbursements of Grant proceeds in excess of the Initial Grant Component, the Grantee must first demonstrate to the Town that Grantee has expended all other sources of financing, including the Homekey Acquisition Funds and the County Grant, and the Initial Grant Component. (b) Notwithstanding any other provisions of this Agreement, the Town shall have no further obligation to disburse any portion of the Grant to Grantee under this Agreement following: (i) termination of this Agreement; or (ii) notification by the Town to the Grantee of an Event of Default (excluding any Event of Default of the Town) under terms of this Agreement until such time as the Event of Default has been cured.
ARTICLE 3.
GRANTEE OBLIGATIONS
Section 3.1 Schedule of Performance.
Subject to Section 7.15 hereof, the Grantee shall perform the tasks described in the Schedule of Performance no later than the dates set forth in the Schedule of Performance, which shall at all times be in substantial conformance with the terms and conditions of the Standard Agreement. The Schedule of Performance may be modified in writing by Grantee and the Town Executive Officer on behalf of the Town without the need for formal amendment of this Agreement or further approval by the Town Council.
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9 Section 3.2 Conversion and Rehabilitation.
(a) Grantee shall be solely responsible to obtain all permits and approvals for the rehabilitation and operation of the Development. Grantee shall convert the Development to Permanent Housing and shall cause the commencement and completion of conversion of the Development to Permanent Housing no later than the dates set forth in the Standard Agreement. (b) Grantee shall achieve full occupancy by the Target Population in accordance with the timelines set forth in the Standard Agreement. Grant funds provided to the Grantee may only be used to fund operating subsidies for Units that are occupied by eligible households and which may not be under active rehabilitation while occupied. (c) The Grantee and the Town agree that the Grantee may as part of any extension seek to negotiate additional commitments of Town funds to support operating subsidies for the Development, which the Town shall provide at its sole and absolute discretion, and which shall be subject to approval by the Town Council.
Section 3.3 Prevailing Wages; Accessibility.
(a) Prevailing Wages. To the extent required by applicable law, Grantee shall:
(1) pay, and shall cause any consultants or contractors to pay, prevailing wages in the demolition of the Existing Improvements as those wages are determined pursuant to California Labor Code Sections 1720 et seq.; (2) cause any consultants or contractors to employ apprentices as required by California Labor Code Section 1777.5 et seq., and the implementing regulations of the Department of Industrial Relations (the "DIR"), and to comply with the other applicable provisions of California Labor Code Sections 1720 et seq., 1777.5 et seq., and implementing regulations of the DIR;
(3) keep and retain, and shall cause any consultants and contractors to keep and retain, such records as are necessary to determine if such prevailing wages have been paid as required pursuant to California Labor Code Section 1720 et seq., and apprentices have been employed as required by California Labor Code Section 1777.5 et seq.; (4) post at the Property, or shall cause the contractor to post at the Property, the applicable prevailing rates of per diem wages. Copies of the currently applicable per diem prevailing wages are available from DIR;
(5) cause contractors and subcontractors performing work on the Property to be registered as set forth in California Labor Code Section 1725.5; (6) cause its contractors and subcontractors, in all calls for bids, bidding materials and the construction contract documents for work on the Property to specify that:
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10 (A) no contractor or subcontractor may be listed on a bid proposal nor be awarded a contract for work on the Property unless registered with the DIR pursuant to California Labor Code Section 1725.5; and
(B) the work at the Property is subject to compliance
monitoring and enforcement by the DIR;
(7) provide the Town all information required by California Labor Code Section 1773.3 as set forth in the DIR's online form PWC-100 within two (2) days of the award of any contract (https://www.dir.ca.gov/pwc100ext/); (8) cause its contractors to post job site notices, as prescribed by regulation by the DIR; and
(9) cause its contractors to furnish payroll records required by California Labor Code Section 1776 directly to the Labor Commissioner, at least monthly in the electronic format prescribed by the Labor Commissioner. (b) Grantee shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the Town) the Town and its councilmembers, officers and employees against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Grantee, its contractors and subcontractors) to pay prevailing wages as determined pursuant to Labor Code Sections 1720 et seq. and prevailing wage requirements of the federal Davis-Bacon Act (40 USC 3141-3148), to employ apprentices pursuant to Labor Code Sections 1777.5 et seq., and implementing regulations of the DIR or to comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1777.5 et seq., and the implementing regulations of the DIR in connection with the performance of the development activities or any other work undertaken or in connection with the Property. The requirements in this subsection survive the termination of this Agreement. (c) Accessibility Requirements. The Development will be operated at all times in compliance with all applicable federal, state, and local disabled persons accessibility requirements including, but not limited to the applicable provisions of the Standard Agreement.
Section 3.4 Inspections.
(a) The Grantee shall permit and facilitate, observation and inspection of the Development by the Town and by public authorities during reasonable business hours upon forty-eight (48) hours' written notice for the purposes of determining compliance with this Agreement, provided, however, that nothing in this Agreement shall entitle the Town to enter an occupied unit in the Development without notice to the program participant thereof, which the Grantee shall deliver on behalf of the Town, and permission from such program participant to the extent such permission is required by law. Such inspections do not relieve the Grantee, or its contractors, from any applicable requirement to obtain other Town or County inspections in connection with the conversion of the Improvements.
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11 (b) After the completion of an inspection the Town shall deliver a copy of the inspection report to the Grantee. If the Town determines as a result of the inspection that there are any deficiencies for any of the inspectable items in the Development, the Grantee shall correct such deficiencies within fifteen (15) days from the delivery of the inspection report or if a period longer than fifteen (15) days is reasonably necessary to correct the deficiency, then Grantee must begin to correct the deficiency within fifteen (15) day, correct the deficiency as soon as reasonably possible, and allow the Town to reinspect the corrected deficiency.
Section 3.5 Approved Financing Plan.
The Approved Financing Plan is attached as Exhibit B, and is incorporated herein by this reference. Grantee shall submit any proposed or required amendments to the Approved Financing Plan, along with evidence that the changes to the Approved Financing Plan are reasonable and necessary, to the Town for approval within fifteen (15) days of the date Grantee receives information indicating that actual costs of the Development materially vary or will vary from the costs shown on the Approved Financing Plan, which approval shall not be unreasonably withheld or delayed. The Town will make best efforts to respond in writing within fifteen (15) days after receipt of a proposed amendment to the Approved Financing Plan.
Section 3.6 Services Plan and Budget.
Grantee, in collaboration with Mono County Behavioral Health, Mono County Social Services, Mono County Adult Education Program, Mono County Workforce Services and Inyo Mono Advocates for Community Action, plans to provide on-site services to all program participants in the Development which are required under the Homekey Program (the "Social Services"). By the time specified in the Schedule, Grantee shall submit to the Town the proposed services plan which shall include written guidelines or procedures for providing the Social Services (the "Services Plan"), and a proposed budget for the provision of Social Services (the "Services Budget"). The Services Plan shall include the types of Social Services provided, staffing levels, and overall coordination of the Social Services.
ARTICLE 4.
GRANT REQUIREMENTS
Section 4.1 Annual Operating Budget.
At the beginning of each year of the Term, Grantee shall provide to the Town an annual budget for the operation of the Development.
Section 4.2 Information.
Grantee shall provide any information related to the Development reasonably requested by the Town in connection with the Development, including (but not limited to) any information required by HCD in connection with the Standard Agreement, and any information required by the Town in connection with the Grantee's use of the Grant funds.
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12 Section 4.3 Records.
(a) Grantee shall keep and maintain at the Development, or at the corporate offices of the Grantee's managing member, or elsewhere with the Town's written consent, full, complete and appropriate books, records and accounts relating to the Development. Books, records and accounts relating to Grantee's compliance with the terms, provisions, covenants and conditions of this Agreement. All applicable financial documents are to be kept and maintained in accordance with generally accepted accounting principles consistently applied. All such books, records, and accounts shall at reasonable times be open to and available for inspection and copying by the Town, its auditors or other authorized representatives at reasonable intervals during normal business hours and forty-eight (48) hours' prior written notice to Grantee. Grantee shall preserve such records for a period of not less than five (5) years after the creation of such records. Copies of all tax returns and other reports that Grantee may be required to furnish to any governmental agency are to be open for inspection by the Town at all reasonable times at the place that the books, records and accounts of Grantee are kept. If any litigation, claim, negotiation, audit exception, monitoring, inspection or other action relating to the use of the Grant is pending at the end of the record retention period stated herein, then Grantee shall retain the records until such action and all related issues are resolved. The records are to include all invoices, receipts, and other documents related to expenditures from the Grant funds. Such records are to include but are not limited to:
(1) Records providing a full description of the activities undertaken under the Standard Agreement;
(2) Records providing a full description of the activities undertaken with the use of the Grant funds;
(3) Records documenting compliance with the Participant Selection Plan and all applicable fair housing, equal opportunity, and affirmative fair marketing requirements;
(4) Records demonstrating compliance with Use Restriction; (5) Records demonstrating compliance with all applicable accessibility requirements;
(6) Records demonstrating compliance with any applicable relocation requirements, which must be retained for at least five (5) years after the date by which persons displaced from the property have received final payments; and (7) Records demonstrating compliance with any applicable labor requirements (including certified payrolls from Grantee's general contractor evidencing that applicable prevailing wages have been paid).
(b) The Town shall notify Grantee of any records it deems insufficient.
Grantee has thirty (30) calendar days after the receipt of such a notice to correct any deficiency in the records specified by the Town in such notice, or if a period longer than thirty (30) days is
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13 reasonably necessary to correct the deficiency, then Grantee must begin to correct the deficiency within thirty (30) days and correct the deficiency as soon as reasonably possible.
Section 4.4 Town Audits.
Each year, Grantee shall provide the Town with a copy of Grantee's annual audited financial statements, which is to include information on all of Grantee's activities pertaining to the Development as is reasonably requested by the Town. Grantee shall cooperate with any audit undertaken by the Town or a Town contractor of Grantee’s compliance with the terms of this Town Grant Agreement as it relates to the Project.
Section 4.5 Town Grant Requirements.
(a) Grantee shall, at all times during the Term hereof, comply with all applicable laws and regulations governing the use of the Homekey Funds under the Standard Agreement. Grantee shall also comply with the laws and regulations governing the use of the Grant funds including (but not limited to) the following:
(1) Civil Rights, Housing and Community Development, and Age Discrimination Acts. The Fair Housing Act (42 U.S.C. 3601 et seq.) and implementing regulations at 24 C.F.R. Part 100; Title VI of the Civil Rights Act of 1964 as amended; Title VIII of the Civil Rights Act of 1968 as amended; Section 104(b) and Section 109 of Title I of the Housing and Community Development Act of 1974 as amended; Section 504 of the Construction Act of 1973 (29 USC 794, et seq.); the Age Discrimination Act of 1975 (42 USC 6101, et seq.); Executive Order 11063 as amended by Executive Order 12259 and implementing regulations at 24 C.F.R. Part 107; Executive Order 11246 as amended by Executive Orders 11375, 12086, 11478, 12107; Executive Order 11625 as amended by Executive Order 12007; Executive Order 12432; Executive Order 12138 as amended by Executive Order 12608, Executive Order 13672 concerning Gender Identity.
(2) Relocation. The parties agree and acknowledge that the project contemplated under this Agreement is not expected to result in any displacement. From and after the Closing, if and to the extent the rehabilitation of Development results in the permanent or temporary displacement of residential tenants, program participants, homeowners, or businesses, then the Grantee shall comply with all applicable local, state, and federal statutes and regulations, (including without limitation the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601, et seq.), and implementing regulations at 49 C.F.R. Part 24; 24 C.F.R. 570.606; Section 104(d) of the Housing and Community Development Act of 1974 and implementing regulations at 24 C.F.R. 42 et seq.; 24 C.F.R. 92.353; and California Government Code Section 7260 et seq. and implementing regulations at 25 California Code of Regulations Sections 6000 et seq. ) with respect to relocation planning, advisory assistance, and payment of monetary benefits. The Grantee shall be solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying with such relocation laws. The Grantee shall defend, indemnify and hold harmless the Town, its governing board members, officers, representatives, agents, assigns and employees against any claim for damages, compensation, fines, penalties, relocation payments or other amounts arising out of the failure or alleged failure of any person or entity (including the
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14 Grantee or the Town) to satisfy relocation obligations related to the rehabilitation of the Development.
(3) Homekey Regulations. Any other HCD regulations present or as may be amended, added, or waived in the future pertaining to the Homekey Funds.
Section 4.6 Hazardous Materials.
(a) Grantee shall keep and maintain the Property in compliance with, and may not cause or permit the Property to be in violation of any federal, state or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions on, under or about the Property including, but not limited to, soil and ground water conditions. Grantee may not use, generate, manufacture, store or dispose of on, under, or about the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including without limitation, any substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," or "toxic substances" under any applicable federal or state laws or regulations (collectively referred to hereinafter as "Hazardous Materials") except such of the foregoing as may be customarily used in rehabilitation of projects like the Development or kept and used in and about residential property of this type.
(b) Grantee shall immediately advise the Town in writing if at any time it receives written notice of: (1) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Grantee or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, ("Hazardous Materials Law"); (2) all claims made or threatened by any third party against Grantee or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (1) and (2) above are hereinafter referred to as "Hazardous Materials Claims"); and (3) Grantee's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as "border-zone property" (as defined in California Health and Safety Code Section 25117.4) under the provisions of California Health and Safety Code, Section 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law. (c) The Town has the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys' fees in connection therewith paid by Grantee. Grantee shall indemnify and hold harmless the Town and its board members, supervisors, directors, officers, employees, agents, successors and assigns from and against any loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about the Property including without limitation: (1) all foreseeable consequential damages; (2) the costs of any required or necessary repair, cleanup or detoxification of the Property and the preparation and implementation of any closure, remedial or other required plans and (3) all reasonable costs and expenses incurred by the Town in connection with clauses (1) and (2), including but not limited to reasonable attorneys' fees and consultant's fees. This
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15 indemnification applies whether or not any government agency has issued a cleanup order.
Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision include, but are not limited to: (A) losses attributable to diminution in the value of the Property; (B) loss or restriction of use of rentable space on the Property; (C) adverse effect on the marketing of any rental space on the Property; and (D) penalties and fines levied by, and remedial or enforcement actions of any kind issued by any regulatory agency (including but not limited to the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the Property and surrounding properties) Section 4.7 Maintenance and Damage.
(a) During the Term, Grantee shall maintain the Development in good repair and in a neat, clean and orderly condition, consistent with quality affordable housing developments owned or operated by Grantee or its affiliates and in compliance with the Town approved Management Plan. If there arises a condition in contravention of this requirement, and if Grantee has not cured such condition within thirty (30) days after receiving written notice from the Town of such a condition, if Grantee is incapable of curing a default within such thirty (30) day period, the Town will give the Grantee ninety (90) days to cure such default provided Grantee has commenced to cure within such thirty (30) day period and is diligently proceeding to cure such default through the end of such period, then in addition to any other rights available to the Town, the Town may perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Property, subject to the provisions provided in subsection (b) below.
(b) If economically feasible in the Town's judgment after consultation with Grantee, if any improvement now or in the future on the Property is damaged or destroyed, then Grantee, at its cost and expense, shall diligently undertake to repair or restore such improvement.
Such work or repair is to be commenced no later than the later of: (i) one hundred twenty (120) days, or such longer period approved by the Town in writing, after the damage or loss occurs; or (ii) thirty (30) days following receipt of the insurance proceeds, and is to be completed within one (1) year thereafter. Any insurance proceeds collected for such damage or destruction are to be applied to the cost of such repairs or restoration and, if such insurance proceeds are insufficient for such purpose, then Grantee shall make up the deficiency. If Grantee does not promptly make such repairs then any insurance proceeds collected for such damage or destruction are to be promptly delivered by Grantee to the Town as a special repayment of the Grant, subject to the rights of the Senior Lenders, as applicable.
Section 4.8 Fees and Taxes.
(a) Grantee is solely responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Property or the Development, and shall pay such charges prior to delinquency, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with generally accepted accounting principles. (b) Town acknowledges that the Grantee intends to apply to the State Board of Equalization for a welfare exemption from property taxes under California Revenue and Taxation Code Section 214 for the Development. A denial, or delayed approval, of such
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16 application shall not excuse the Grantee’s compliance with the terms of this Town Grant Agreement
Section 4.9 Notice of Litigation.
Grantee shall promptly notify the Town in writing of any litigation related to the Development for which the amount claimed or at issue is in excess of Two Hundred Fifty Thousand Dollars ($250,000), and of any claims or disputes that involve a material risk of such litigation. The conditions and obligations set forth in this Section shall apply for the entire Term of this Agreement.
Section 4.10 Operation of Development as Affordable Housing. (a) Grantee shall operate the Development as an affordable housing development for Low Income Households, consistent with: (1) HCD's requirements for use of the Homekey Funds and the terms and conditions set forth in the Standard Agreement; (2) the Use Restriction; and (3) any other regulatory requirements imposed on Grantee including but not limited to regulatory agreements associated with the Town Grant. (b) Grantee shall evaluate the income eligibility of each Program Participant in Units. For all Units, Grantee shall certify or cause the property manager to certify each Program Participant's continued program eligibility an annual basis. (c) Grantee shall maintain all documents setting forth the program eligibility, as applicable, household income of each household occupying a Unit, and the total amount for contribution, utilities, and related services charged to each household occupying the Development, as prescribed by the Use Restriction and all other recorded regulatory restrictions.
Section 4.11 Nondiscrimination.
(a) Grantee herein covenants by and for itself, its heirs, executors, administrators, successors and assigns, and all persons claiming under or through Grantee, that there will be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age (except for lawful senior housing in accordance with state and federal law), familial status, disability, sex, sexual orientation, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor may Grantee or any person claiming under or through Grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of program participants, tenants, lessees, subtenants, sublessees or vendees in the Property. Grantee shall comply with Executive Orders 11246, 11375, 11625, 12138, 12431, 12250, 13672, Title VII of the Civil Rights Act of 1964, the California Fair Housing and Employment Act and other applicable Federal, State and local laws and regulations and policies relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted. Notwithstanding the above, with respect to familial status, the above should not be construed to apply to housing for older persons as defined in Section 12955.9 of the Government Code and other applicable sections of the Civil Code as identified in Health and Safety Code Section 33050(b). The foregoing covenant will run with the land.
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17 Section 4.12 Transfer.
(a) Definition. For purposes of this Agreement, "Transfer" means any sale, assignment, or transfer, whether voluntary or involuntary, of: (1) any rights and/or duties under this Agreement; and/or (2) any interest in the Development, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a fee interest, a security interest, or an interest evidenced by a land contract by which possession of the Development is transferred and Grantee retains title. The term "Transfer" excludes the leasing of a Unit in the Development to an occupant in compliance with the Use Restriction. The Town Executive Officer is authorized to execute assignment and assumption agreements on behalf of the Town to implement any approved Transfer.
(b) Prohibition. Except as expressly permitted in this Agreement, the Grantee represents and agrees that the Grantee shall not make or create, or suffer to be made or created, any Transfer, either voluntarily or by operation of law without the prior written approval of the Town.
(1) The limitations on Transfers set forth in this Section shall apply throughout the Term.
(2) Any Transfer made in contravention of this Section shall be void and shall be deemed to be a default under this Agreement whether or not the Grantee knew of or participated in such Transfer.
(c) Permitted Transfers. Notwithstanding the foregoing, the following are permitted Transfers shall be permitted and are hereby approved by the Town (each a "Permitted Transfer"):
(1) Any Transfer creating a Security Financing Interest either: (A) permitted pursuant to the Approved Financing Plan; or (B) created as a result of a loan made to developer that replaces any existing Security Financing Interest, so long as such replacement Security Financing Interest does not secure an obligation in excess of the then outstanding balance of the original principal amount of the replaced Security Financing Interest. Town will not unreasonably withhold, condition or delay its consent to any refinancing under this Section. (2) Any Transfer directly resulting from the foreclosure of a Security Financing Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest or as otherwise permitted under this Agreement.
(3) Any Transfer to Mammoth Lakes Housing, Inc., any successor in interest and any Affiliate or subsidiary of Grantee or Mammoth Lake Housing Inc.
Section 4.13 Insurance Requirements.
(a) Grantee shall maintain the following insurance coverage throughout the Term of the Grant written by insurers authorized to do business in the State of California and with a minimum "Best" Insurance Guide rating of "A-VII". If the Grantee uses existing coverage to comply with these requirements and that coverage does not meet the specified
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18 requirements, the Grantee agrees to amend, supplement, or endorse the existing coverage to do so. The type(s) of insurance required is determined by the scope of the contract services. (b) Without in anyway affecting the indemnity herein provided and in addition thereto, the Grantee shall secure and maintain throughout the term of this Town Grant Agreement the following types of insurance with limits as shown:
(1) Workers' Compensation/Employers Liability.
(A) Workers' Compensation A program of Workers'
Compensation insurance or a state-approved, self-insurance program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with $250,000 limits covering all persons including volunteers providing services on behalf of the Grantee and all risks to such persons under this Agreement. (B) If Grantee has no employees, Grantee may certify or warrant to the Town, that it does not currently have any employees or individuals who are defined as "employees" under the Labor Code and the requirement for Workers' Compensation coverage will be waived by the Director of Risk Management. (C) With respect to borrowers that are non-profit corporations organized under California or federal law, volunteers for such entities are required to be covered by Workers' Compensation insurance.
(2) Commercial General Liability. General Liability Insurance covering all operations performed by or on behalf of Grantee providing coverage for bodily injury and property damage with a combined single limit of not less than One Million Dollars ($1,000,000), per occurrence. The policy coverage must include:
(A) Premises operations and mobile equipment.
(B) Products and completed operations.
(C) Broad form property damage (including completed
operations).
(D) Explosion, collapse, and underground hazards.
(E) Personal injury.
(F) Contractual liability.
(G) $2,000,000 general aggregate limit.
(3) Commercial Automobile Liability.
(A) Primary insurance coverage must be written on ISO
Business Auto coverage form for all owned, hired and non-owned automobiles or symbol I (any auto).
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19 (B) The policy must have a combined single limit of not less than One Million Dollars ($1,000,000) for bodily injury and property damage, per occurrence. (C) If the Grantee is transporting one or more non-employee passengers in performance of contract services, the automobile liability policy must have a combined single limit of Two Million Dollars ($2,000,000) for bodily injury and property damage per occurrence.
(D) If the Grantee owns no autos, a non-owned auto
endorsement to the General Liability policy described above is acceptable. (4) Builders' Risk/Property Insurance. Builders' Risk insurance during the course of rehabilitation, and upon completion of any rehabilitation work to be performed, property insurance covering the Development, in form appropriate for the nature of such property, covering all risks of loss, for one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the Town, naming the Town as a Loss Payee, as its interests may appear. Earthquake and Flood insurance must be obtained if required by applicable federal regulations in amounts approved by the Town. (5) Commercial Crime. Commercial crime insurance covering all officers and employees, for loss of Grant proceeds caused by dishonesty, in an amount approved by the Town, naming the Town a Loss Payee, as its interests may appear. (c) Grantee shall cause any general contractor, agent, or subcontractor working on the Development under direct contract with Grantee or subcontract to maintain insurance of the types and in at least the minimum amounts described in subsections (1), (2), and (3) above, meeting all of the general requirements of subsections (e) and (f) below and naming the Town as an additional insured. The Grantee agrees to monitor and review all such coverage and assumes all responsibility ensuring that such coverage is provided as required here. (d) An umbrella (over primary) or excess policy may be used to comply with limits or other primary coverage requirements. When used, the umbrella policy must apply to bodily injury/property damage, personal injury/advertising injury and must include a "dropdown" provision providing primary coverage for any liability not covered by the primary policy. The coverage must also apply to automobile liability. (e) The required insurance must be provided under an occurrence form, and Grantee shall maintain the coverage described in subsections (a) continuously throughout the Term. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit must be three times the occurrence limits specified above.
(f) Comprehensive Commercial General Liability and Commercial Automobile Liability insurance policies must be endorsed to name as an additional insured the Town and its officers, agents, employees and members of the Town Council. The additional insured endorsements must not limit the scope of coverage for the Town to vicarious liability but must allow coverage for the Town to the full extent provided by the policy. Such additional
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20 insured coverage must be at least as broad as Additional Insured (Form B) endorsement form ISO, CG 2010.11 85.
(g) All policies and bonds are to contain: (1) the agreement of the insurer to give the Town at least thirty (30) days' notice prior to cancellation (including, without limitation, for non-payment of premium) or any material change in said policies; (2) an endorsement or policy term that such policies are primary and non-contributing with any insurance that may be carried by the Town; (3) a provision that no act or omission of Grantee shall affect or limit the obligation of the insurance carrier to pay the amount of any loss sustained; and (4) a waiver by the insurer of all rights of subrogation against the Town and its authorized parties in connection with any loss or damage thereby insured against.
(h) The Grantee shall require the carriers of required coverages to waive all rights of subrogation against the Town, its officers, employees, agents, volunteers, contractors and subcontractors. All general or auto liability insurance coverage provided shall not prohibit the Grantee and its employees or agents from waiving the right of subrogation prior to a loss or claim. The Grantee hereby waives all rights of subrogation against the Town. (i) All policies required herein are to be primary and non-contributory with any insurance or self-insurance programs carried or administered by the Town, and shall include an endorsement or policy terms to this effect.
(j) The Grantee shall furnish Certificates of Insurance to the Town Department administering this Town Grant Agreement evidencing the insurance coverage prior to the close of Escrow, additional endorsements, as required shall be provided prior to the commencement of performance of Grantee’s obligations under this Town Grant Agreement, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the Department, and Grantee shall maintain such insurance from the time Grantee commences performance of services hereunder until the completion of such services. Within fifteen (15) days following the close of Escrow, the Grantee shall furnish a copy of the Declaration page for all applicable policies and will provide complete certified copies of the policies and endorsements immediately upon request. (k) The Grantee agrees to ensure that coverage provided to meet these requirements is applicable separately to each insured and there will be no cross liability exclusions that preclude coverage for suits between the Grantee and the Town or between the Town and any other insured or additional insured under the policy. (l) Any and all deductibles or self-insured retentions in excess of Twenty Thousand Dollars ($20,000) shall be declared to and approved by Risk Management, provided that Risk Management may withhold or condition such approval in its reasonable discretion. (m) In the event that any policy of insurance required in this Section does not comply with the requirements, is not procured, or is canceled and not replaced, the Town has the right but not the obligation or duty to obtain such insurance it deems necessary and any premiums paid by the Town will be promptly reimbursed by Grantee or Town disbursements to Grantee will be reduced to pay for the Town purchased insurance.
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21 (n) Insurance requirements are subject to periodic review by the Town. The Director of Risk Management or designee is authorized, but not required, to reduce, waive or suspend any insurance requirements whenever Risk Management determines that any of the required insurance is not available, is unreasonably priced, or is not needed to protect the interests of the Town. In addition, if Risk Management determines that heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits become reasonably priced and available, the Director of Risk Management or designee is authorized, but not required, to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the Town, inflation, or any other item reasonably related to the Town's risk. Any change requiring additional types of insurance coverage or higher coverage limits must be made by amendment to this Agreement. Grantee agrees to execute any such amendment within thirty (30) days of receipt. Any failure, actual or alleged, on the part of the Town to monitor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of the Town.
Section 4.14 Anti-Lobbying Certification.
(a) Grantee certifies to the best of Grantee's knowledge or belief, that:
(1) No federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement;
(2) If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Form-LLL, Disclosure Form to Report Lobbying, in accordance with its instructions.
(b) This certification is a material representation of fact upon which reliance was placed when this Agreement was made or entered into. Submission of this certification is a prerequisite for making or entering into this Agreement imposed by Section 1352, Title 31, U. S.
Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than Ten Thousand Dollars ($10,000) and no more than One Hundred Thousand Dollars ($100,000) for such failure.
Section 4.15 Covenants Regarding Approved Financing.
(a) Grantee shall promptly pay the principal and interest when due on any Approved Financing.
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22 (b) Grantee shall promptly notify the Town in writing of the existence of any default under any documents evidencing Approved Financing, including formally declared defaults and defaults that have not been formally declared by the lender but the existence of the potential default has been communicated to the Grantee by the lender in writing or otherwise, and provide the Town copies of any notice of default. The Town shall have the right, but not the obligation, to cure any monetary default by Grantee under a loan secured by the Property. (c) Grantee may not materially amend, modify, supplement, cancel or terminate any of the documents evidencing Approved Financing without the prior written consent of the Town, which consent shall not be unreasonably withheld, conditioned or delayed, provided that no withholding of consent shall be deemed unreasonable if the proposed action by Grantee would conflict with any of its obligations under this Agreement, applicable law, and/or the Homekey Regulations.
(d) Grantee may not incur any indebtedness of any kind other than Approved Financing or encumber the Development with any liens (other than liens for Approved Financing approved by the Town or as otherwise allowed under the Town approved Operating Agreement) without the prior written consent of the Town, provided that no withholding of consent shall be deemed unreasonable if the proposed action by Grantee would conflict with any of the Grantee’s obligations under this Agreement, applicable law, and/or the Homekey Regulations.
Section 4.16 Affordability and Project Monitoring.
(a) Throughout the Term, the Grantee shall comply with all applicable record keeping and monitoring requirements set forth in the Homekey Regulations. (b) Representatives of the Town (and HCD or an authorized representative) shall be entitled to enter the Property upon at least forty-eight (48) hours' notice at reasonable times to monitor compliance with this Agreement, to inspect the records of the Development, and to conduct an independent audit of such records. The Grantee agrees to cooperate with the Town in making the Property available for such inspection. If for any reason the Town is unable to obtain the Grantee's consent to such an inspection, the Grantee understands and agrees that the Town may obtain, at the Grantee's expense, an administrative inspection warrant or other appropriate legal order to obtain access to and search the Property. The Grantee agrees to maintain records in a business-like manner and to make such records available to the Town upon forty-eight (48) hours' notice at reasonable times. Unless the Town otherwise approves, such records shall be maintained for the most recent five (5) years until five (5) years after the expiration of the Homekey Term.
(c) Throughout the Term, the Grantee grants the Town inspection rights as set forth in Section 3.4 above, and Grantee shall make best efforts to allow the Town to comply with all applicable physical monitoring requirements.
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23 ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF GRANTEE
Section 5.1 Representations and Warranties of Grantee.
Grantee hereby represents and warrants to the Town as follows and acknowledges, understands, and agrees that the representations and warranties set forth in this Article 5 are deemed to be continuing during the Term. The Grantee shall immediately advise the Town in writing if there is any material change relating to any matters set forth or referenced in the items set forth below:
(a) Organization. Grantee is duly organized, validly existing and in good standing under the laws of the State of California and has the power and authority to own its property and carry on its business as now being conducted. Copies of the documents evidencing the organization of the Grantee delivered to the Town are true and correct copies of the originals. (b) Authority of Grantee. Grantee has full power and authority to execute and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to execute and deliver the Grant Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above.
(c) Authority of Persons Executing Documents. This Agreement and the Grant Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of Grantee, and all actions required under Grantee's organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and the Grant Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken.
(d) Valid Binding Agreements. This Agreement and the Grant Documents and all other documents or instruments which have been executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of Grantee enforceable against it in accordance with their respective terms.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement and the Grant Documents or of any other documents or instruments executed and delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission or agency whatsoever binding on Grantee, or any provision of the organizational documents of Grantee, or will conflict with or constitute a breach of or a default under any agreement to which Grantee is a party, or will result in the creation or imposition of any lien upon any assets or property of Grantee, other than liens established pursuant hereto.
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24 (f) Compliance with Laws; Consents and Approvals. The conversion of the Development will comply with all applicable laws, ordinances, rules and regulations of federal, state and local governments and agencies and with all applicable directions, rules and regulations of the fire marshal, health officer, building inspector and other officers of any such government or agency.
(g) Pending Proceedings. Grantee is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Grantee, threatened against or affecting Grantee or the Development, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversely to Grantee, materially affect Grantee's ability to repay the Grant or impair the security to be given to the Town pursuant hereto.
(h) Title to Land. At the time of recordation of the Use Restriction, Grantee will have good and marketable fee title to the Development and there will exist thereon or with respect thereto no mortgage, lien, pledge or other encumbrance of any character whatsoever other than liens for current real property taxes and liens ancillary to the Approved Financing and liens in favor of the Town or approved in writing by the Town. (i) Financial Statements. The financial statements of Grantee and other financial data and information furnished by Grantee to the Town fairly and accurately present the information contained therein. As of the date of this Agreement, there has not been any material adverse change in the financial condition of Grantee from that shown by such financial statements and other data and information.
(j) Sufficient Funds. Grantee holds or expects to receive firm financial commitments for sufficient funds to complete the acquisition of the Property and the conversion of the Development in accordance with the Standard Agreement. (k) Taxes. Grantee and its subsidiaries have filed all federal and other material tax returns and reports required to be filed, and have paid all federal and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their income or the Property otherwise due and payable, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with generally accepted accounting principles. There is no proposed tax assessment against Grantee or any of its subsidiaries that could, if made, be reasonably expected to have a material adverse effect upon the Property, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of Grantee and its subsidiaries, taken as a whole, which would be expected to result in a material impairment of the ability of Grantee to perform under any Grant Document to which it is a party, or a material adverse effect upon the legality, validity, binding effect or enforceability against Grantee of any Grant Document.
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25 ARTICLE 6.
DEFAULT AND REMEDIES
Section 6.1 Events of Default.
(a) Subject to Section 7.14, each of the following constitutes an "Event of Default" by Grantee under this Agreement:
(1) Failure under Standard Agreement. Failure of Grantee to obtain permits, commence, and prosecute to completion, conversion of the Development within the times set forth in the Standard Agreement.
(2) Failure to Comply with the Management Plan. Failure to comply with the Management Plan approved by the Town and such failure having continued uncured for thirty (30) days after receipt of written notice thereof from the Town to the Grantee, which notice provides reasonable detail of the default and the required cure for such default. (3) Breach of Covenants. Failure by Grantee to duly perform, comply with, or observe any of the conditions, terms, or covenants of any of the Grant Documents, and Grantee fails to cure such default within forty-five (45) days after receipt of written notice thereof from the Town to Grantee. If Grantee is incapable of curing a default within such fortyfive (45) day period, the Town will give the Grantee one hundred twenty (120) days to cure such default provided Grantee has commenced to cure within such forty-five (45) day period and is diligently proceeding to cure such default through the end of such period; provided, however, that if a different period or notice requirement is specified under any other section of this Article 6, the specific provisions shall control.
(4) Default Under Other Loans. A default is declared under any other financing for the Development by the lender of such financing and such default remains uncured following any applicable notice and cure period.
(5) Insolvency. A court having jurisdiction makes or enters any decree or order: (1) adjudging Grantee to be bankrupt or insolvent; (2) approving as properly filed a petition seeking reorganization of Grantee, or seeking any arrangement for Grantee under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (3) appointing a receiver, trustee, liquidator, or assignee of Grantee in bankruptcy or insolvency or for any of their properties; (4) directing the winding up or liquidation of Grantee if any such decree or order described in clauses (1) to (4), inclusive, is unstayed or undischarged for a period of ninety (90) calendar days; or (5) Grantee admits in writing its inability to pay its debts as they fall due or will have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive. (6) Assignment; Attachment. Grantee assigns its assets for the benefit of its creditors or suffers a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon is returned or released within ninety (90) calendar days after such event or, if sooner, prior to sale pursuant to such sequestration, attachment, or execution.
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26 (7) Suspension; Termination. Grantee, or its sole and managing member, shall have: (1) the operation of their business voluntarily or involuntarily suspended by the State of California, (2) voluntarily stopped or terminated the operation of their business; (3) the Grantee shall have the operation of the limited liability company voluntarily or involuntarily dissolved, suspended or terminated by the State of California. (8) Liens on Property and the Development. Any claim of lien (other than liens approved in writing by the Town) is filed against the Development or any part thereof, or any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of the Grant and the continued maintenance of said claim of lien or notice to withhold for a period of thirty (30) days, without discharge or satisfaction thereof or provision therefor (including, without limitation, the posting of bonds) satisfactory to the Town. (9) Unauthorized Transfer. Any Transfer other than as permitted pursuant to Section 4.12.
(10) Representation or Warranty Incorrect. Any Grantee representation or warranty contained in this Agreement, or in any application, financial statement, certificate, or report submitted to the Town in connection with any of the Grant Documents, proves to have been incorrect in any material respect when made.
(11) Failure to Timely Make Units Available for Occupancy. Failure of Grantee to make the Units available for occupancy within the time specified in the Standard Agreement.
Section 6.2 Remedies.
(a) The occurrence of an Event of Default, following the expiration of all applicable notice and cure periods, will either at the option of the Town or automatically where so specified, give the Town the right to proceed with any and all remedies set forth in this Agreement and the Grant Documents, including but not limited to the following:
(1) Revocation of Grant. The Town may demand that any portion of the Grant not forgiven pursuant to Section 2.3 above, together with any accrued interest thereon, to become immediately due and payable. The Town may proceed to enforce payment of the indebtedness and to exercise any or all rights afforded to the Town as a creditor and secured party under the law including the Uniform Commercial Code. Grantee is liable to pay the Town on demand all reasonable expenses, costs and fees (including, without limitation, reasonable attorney's fees and expenses) paid or incurred by the Town in connection with the collection of the Grant and the preservation, maintenance, protection, sale, or other disposition of the security given for the Grant.
(2) Specific Performance. The Town has the right to mandamus or other suit, action or proceeding at law or in equity to require Grantee to perform its obligations and covenants under the Grant Documents or to enjoin acts on things that may be unlawful or in violation of the provisions of the Grant Documents.
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27 (3) Termination. The Town has the right to terminate this Agreement and, at its sole option, to seek any remedies at law or equity available hereunder. (4) Right of Reverter. In the event that this Agreement is terminated by the Town pursuant to Section 6.2, the Town shall have the right to reenter and take possession of the Property, and all improvements thereon and to revest in the Town the estate of the Grantee in the Property. The rights of the Town under this Right of Reverter shall be subject to the rights created by, be limited by and shall not defeat, render invalid or limit any approved security interest permitted by this Agreement or the rights or interests provided in this Agreement for the protection of the holder of such approved security interests. Upon vesting or revesting in the Town of title to the Property, the Town shall promptly use its best efforts to resell the Property.
Upon sale the proceeds shall be applied as follows: (i) first, to reimburse the Town for any costs incurred in managing or selling the property, including but not limited to amounts to discharge or prevent liens or encumbrances arising from any acts or omissions of the Grantee; (ii) second, reimburse the Town for damages to which it is entitled under this Agreement by reason of the Grantee's default; (iii) third, to the Grantee for the documented reasonable cost of the Improvements the Grantee has placed on the Property and such other documented reasonable costs Grantee has incurred directly in connection with development of the Property, as applicable, that were not financed by the Town; and (iv) fourth, any balance to the Town. (5) Option to Repurchase, Reenter and Repossess. The Town shall have the additional right at its option to repurchase, reenter and take possession of the Property or any portion thereof owned by Grantee with all Improvements thereon, if there is an uncured Event of Default. The rights of the Town under this Option to Repurchase shall be subject to the rights, be limited by and shall not defeat, render invalid or limit any approved security interest permitted by this Agreement or the rights or interests provided in this Agreement for the protection of the holder of such approved security interests. To exercise its right to repurchase, reenter and take possession with respect to the Property, the Town shall pay to the Grantee, in cash an amount equal to the fair market value of the Improvements existing on the Property, at the time of the repurchase, reentry and repossession less: (i) any gains or income withdrawn or made by the Grantee from the Property and (ii) the value of any unpaid liens or encumbrances on the Property, which the Town assumes or takes subject to said encumbrances. (6) Right to Cure. The Town has the right (but not the obligation) to cure any monetary default by Grantee under a loan other than the Grant. However, if the Grantee is in good faith contesting a claim of default under a loan or grant and the Town's interest is not imminently threatened by such default, in the Town's sole judgment, the Town shall not have the right to cure such default. Grantee shall reimburse the Town for any funds advanced by the Town to cure a monetary default by Grantee upon demand therefor, together with interest thereon at the lesser of the maximum rate permitted by law and ten percent (10%) per annum (the "Default Rate") from the date of expenditure until the date of reimbursement. (7) Recorded Agreement. The Grantee hereby agrees to record a Memorandum of Agreement to provide notice of the Town's remedies hereunder.
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28 Section 6.3 Right of Contest.
Grantee may contest in good faith any claim, demand, levy, or assessment the assertion of which would constitute an Event of Default hereunder. Any such contests are to be prosecuted diligently and, other than those contesting claims, demands, levies, or assessments imposed by the Town, are to be prosecuted in a manner unprejudicial to the Town or the rights of the Town hereunder.
Section 6.4 Remedies Cumulative.
No right, power, or remedy given to the Town by the terms of this Agreement or the Grant Documents is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy will be cumulative and in addition to every other right, power, or remedy given to the Town by the terms of any such instrument, or by any statute or otherwise against Grantee and any other person. Neither the failure nor any delay on the part of the Town to exercise any such rights and remedies will operate as a waiver thereof, nor does any single or partial exercise by the Town of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy.
ARTICLE 7.
GENERAL PROVISIONS
Section 7.1 Relationship of Parties.
Nothing contained in this Agreement is to be interpreted or understood by any of the Parties, or by any third persons, as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between the Town and Grantee, or their agents, employees or contractors, and Grantee will at all times be deemed an independent contractor and to be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement. Grantee retains the right to exercise full control of employment, direction, compensation, and discharge of all persons assisting in the performance of services under the Agreement. In regard to the rehabilitation and operation of the Development, Grantee is solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding, and all other laws and regulations governing such matters, and must include requirements in each contract that contractors are solely responsible for similar matters relating to their employees. Grantee is solely responsible for its own acts and those of its agents and employees.
Section 7.2 No Claims.
Nothing contained in this Agreement creates or justifies any claim against the Town by any person that Grantee may have employed or with whom Grantee may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the tenancy of the Property, the rehabilitation or operation of the Development, and Grantee shall include similar requirements in any contracts entered into for the rehabilitation or operation of the Development.
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29 Section 7.3 Indemnification.
The Grantee agrees to indemnify, defend and hold harmless the Town and its authorized officers, employees, agents and volunteers ("Indemnitees") from any and all claims, actions, losses, damages, and/or liability arising out of this contract from any cause whatsoever, including the acts, errors or omissions of any person and for any costs or expenses incurred by the Town on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of Indemnitees, except as provided in the following sentence. The indemnification obligations apply to the Town's "active" as well as "passive" negligence but does not apply to the Town's "gross negligence" or "willful misconduct" within the meaning of Civil Code Section 2782. This indemnification provision is not intended to and does not limit, negate, modify, nullify, or change the non-recourse provisions of this Agreement or any other agreement, document, instrument, certificate or covenant executed by Grantee. The provisions of this Section will survive the expiration of the Term.
Section 7.4 Non-Liability of Town Officials, Employees and Agents.
No councilmember, official, employee or agent of the Town is personally liable to Grantee in the event of any default or breach by the Town or for any amount that may become due to Grantee or its successor or on any obligation under the terms of this Agreement.
Section 7.5 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
Section 7.6 Conflict of Interest.
(a) Except for approved eligible administrative or personnel costs, no person described in Section 7.6(b) below who exercises or has exercised any functions or responsibilities with respect to the activities funded pursuant to this Agreement or who is in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain a financial interest or financial benefit from the activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during, or at any time after, such person's tenure. Grantee shall exercise due diligence to ensure that the prohibition in this Section is followed.
(b) The conflict of interest provisions of Section 7.6(a) above apply to any person who is an employee, agent, consultant, officer of the Town, or any immediate family member of such person, or any elected or appointed official of the Town, or any person related within the third (3rd) degree of such person.
(c) In accordance with California Government Code Section 1090 and the Political Reform Act, California Government Code Section 87100 et seq., no person who is a director, officer, partner, trustee or employee or consultant of Grantee, or immediate family member of any of the preceding, may make or participate in a decision, made by the Town or a Town council, commission or committee, if it is reasonably foreseeable that the decision will
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30 have a material effect on any source of income, investment or interest in real property of that person or Grantee. Interpretation of this Section is governed by the definitions and provisions used in the Political Reform Act, California Government Code Section 87100 et seq., its implementing regulations manual and codes, and California Government Code Section 1090.
Section 7.7 Notices, Demands and Communications.
All notices required or permitted by any provision of this Agreement must be in writing and sent by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or delivered personally, to the principal office of the Parties as follows:
Town:
Town of Mammoth Lakes
P.O. Box 1609
Mammoth Lakes, CA 93546
Attn: Town Manager
Grantee:
Innsbruck Lodge Affordable Housing, LLC
c/o Mammoth Lakes Housing, Inc.
P.O. Box 260
Mammoth Lakes, CA 93546
Attn: Patricia Robertson, Executive Director
with a copy to:
Goldfarb & Lipman, LLP
1300 Clay Street, 11th Floor
Oakland, CA 94612
Attn: Rafael Yaquian
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected party may from time to time designate by mail as provided in this Section. Receipt will be deemed to have occurred on the date shown on a written receipt as the date of delivery or refusal of delivery (or attempted delivery if undeliverable).
Section 7.8 Amendments.
No alteration or variation of the terms of this Agreement is valid unless made in writing by the Parties. The Town Executive Officer is authorized to execute on behalf of the Town amendments to the Grant Documents or amended and restated Grant Documents as long as any material change in the amount or terms of this Agreement is approved by the Town Council.
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31 Section 7.9 Town Approval.
The Town has authorized the Town Executive Officer to execute the ancillary Grant documents and deliver such approvals or consents as are required by this Agreement, and to execute estoppel certificates concerning the status of the Grant and the existence of defaults under the Grant Documents.
Section 7.10 Applicable Law and Venue.
This Agreement is governed by the laws of the State of California. Any action brought claiming a breach of this Agreement or interpreting this Agreement shall be brought and venued in Mono County, California
Section 7.11 Parties Bound.
Except as otherwise limited herein, this Agreement binds and inures to the benefit of the parties and their heirs, executors, administrators, legal representatives, successors, and assigns.
This Agreement is intended to run with the land and to bind Grantee and its successors and assigns in the Property and the Development for the entire Term, and the benefit hereof is to inure to the benefit of the Town and its successors and assigns.
Section 7.12 Attorneys' Fees.
If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing party will have the right to recover its reasonable attorneys' fees and costs of suit from the other party.
Section 7.13 Severability.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions will continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability.
Section 7.14 Force Majeure.
In addition to specific provisions of this Agreement, performance by any party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of god; acts of the public enemy; epidemics; pandemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation (including suits filed by third parties concerning or arising out of this Agreement); weather or soils conditions which, in the opinion of the Grantee's contractor, will necessitate delays; inability to secure necessary labor, materials or tools, acts of the other party; acts or failure to act of any public or governmental Town or entity (other than the acts or failure to act of the Town); or any other causes (other than the Grantee's inability to obtain financing for the Improvements) beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any cause will be deemed granted if notice by the party claiming such extension is sent to the other party within ten (10) business days from the
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32 date the party seeking the extension first discovered the cause and such extension of time is not rejected in writing by the other party within ten (10) business days of receipt of the notice.
Times of performance under this Agreement may also be extended in writing by the Town and the Grantee. In no event shall the cumulative delays during the Term of this Agreement exceed one hundred eighty (180) days, unless otherwise agreed to by the Parties in writing.
Section 7.15 Waivers.
Any waiver by the Town of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the Town to take action on any breach or default of Grantee or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Grantee to perform any obligation under this Agreement does not operate as a waiver or release from any of its obligations under this Agreement. Consent by the Town to any act or omission by Grantee may not be construed to be consent to any other or subsequent act or omission or to waive the requirement for the Town's written consent to future waivers.
Section 7.16 Title of Parts and Sections.
Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and are to be disregarded in interpreting any part of the Agreement's provisions.
Section 7.17 Entire Understanding of the Parties.
The Grant Documents constitute the entire agreement of the Parties with respect to the Grant.
Section 7.18 Multiple Originals; Counterpart.
This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts.
Section 7.19 Action by the Town. Whenever any approval, notice, direction, finding, consent, request, waiver, or other action by the Town is required or permitted under this Agreement or any other of the Grant Documents, such action may be given, made, taken, refused, denied or withheld by the Town Executive Officer, at the Town Executive Officer's reasonable discretion (unless some other standard is expressly stated). Any such action shall be in writing. For the avoidance of doubt, if the Town Executive Officer determines Town Council action is necessary or desirable prior to the granting of any approval, notice, direction, finding, consent, request, waiver, or other action, the Town Executive Officer may at their sole discretion refer the action to the Town Council for consideration of such action. [Signature Pages Follow]
Signature page
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WHEREAS, this Agreement has been entered into by the undersigned as of the Effective Date.
TOWN:
TOWN OF MAMMOTH LAKES, a political subdivision of the
State of California
By: _____________________________________
Daniel C. Holler, Town Manager
APPROVED AS TO LEGAL FORM:
ANDREW MORRIS
Town Attorney
By: ____________________________________
Andrew Morris, Town Attorney
Date: ______________________
[Signature Page Continues]
Signature page
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GRANTEE:
INNSBRUCK LODGE AFFORDABLE HOUSING, LLC, a Californ
limited liability company
By: Mammoth Lakes Housing, Inc., a California nonprofit public benefit corporation
By: _____________________________________
Patricia Robertson, Executive Director
Date: ___________________________________________
A-1
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The land is situated in the State of California, County of Mono, and is described as follows:
PARCEL 1 OF PARCEL MAP NO. 36-51 IN THE TOWN OF MAMMOTH LAKES, COUNTY OF MONO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1, PAGE 106 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
B-1
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EXHIBIT B
APPROVED FINANCING PLAN
Innsbruck Lodge Final Development Budget Awarded Budget Grant Sources
*All sources are grants and do
not require repayment
Land and Acquisition $3,503,887 $2,700,000 Homekey
Rehab Costs $2,562,374 $1,000,000 Town of Mammoth
Architecture & Soft Costs $736,167 $550,000 Mono County Insurance & Taxes $33,165 $1,550,000 Homekey Match
Permit & DIF $45,303 $160,000 Homekey Application Bonus Replacement Reserves $31,019 $343,338 Continuum of Care Contingency $120,000 $141,131 Mammoth Lakes Housing
$400,000 Town of Mammoth - last in
$187,445 MLH - Other
Total $7,031,914 $7,031,914
C-1
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EXHIBIT C
SCHEDULE OF PERFORMANCE
This Schedule of Performance sets forth the schedule for various activities under the Agreement to which this exhibit is attached. The description of items in this Schedule of Performance is meant to be descriptive only, and shall not be deemed to modify in any way the provisions of the Agreement to which such items relate. Times for performance are subject to Force Majeure, as further provided in Section 7.14 of the Agreement, and the notice and cure rights as further provided in the Agreement.
As provided in the Agreement, this Schedule of Performance may only be modified in a writing executed by all Parties, in accordance with Section 7.8 of the Agreement.
Milestone Date
Close on Acquisition Financing August 31, 2022
Execute Standard Agreement March 30, 2023
Execute Town and County Grant Documents April 30, 2023
Obtain Building Permits April 30, 2023
Begin rehabilitation May 30, 2023
Complete rehabilitation November 17, 2023
Capital Expenditure Deadline December 30, 2023
_90%__ Units Occupied February 15, 2024
D-1
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EXHIBIT D
FORM OF USE RESTRICTION
1 1507\13\3345644.3
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Town of Mammoth Lakes
437 Old Mammoth Road, Suite 230
Mammoth Lakes, CA 93546
Attn: Daniel C. Holler, Town Manger
NO FEE FOR RECORDING PURSUANT
TO GOVERNMENT CODE
SECTIONS 6103 AND 27383
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
APN: 033-041-006-000
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(Homekey – Innsbruck Lodge)
This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement) is dated as of April __, 2023, and is made by and between THE TOWN OF MAMMOTH LAKES (the "Town") and INNSBRUCK LODGE AFFORDABLE HOUSING, LLC, a California limited liability company and controlled affiliate of MAMMOTH LAKES HOUSING, INC., a California nonprofit public benefit corporation (collectively referred to herein as "Owner"). The Town and Owner shall be referred individually as "the Party," and collectively, as "the Parties."
RECITALS
Capitalized terms used but not defined in these recitals are as defined in Article 1 of this Agreement.
1. The Department of Housing and Community Development ("HCD") issued a Round 2 Notice of Funding Availability ("NOFA") for the Homekey Program, established by California Health and Safety Code Section 50675.1.1 (the "Homekey Program"), on September 9, 2021. The NOFA incorporates by reference the Multifamily Housing Program ("MHP"), as well as the MHP Final Guidelines ("MHP Guidelines"), dated June 19, 2019, both as amended and in effect from time to time. In addition, the NOFA states that Homekey grant funds are derived primarily from the Coronavirus Fiscal Recovery Fund (CSFRF), established by the American Rescue Plan Act of 2021 (ARPA) (Public Law 117-2).
2. Owner acquired certain real property located at 913 Forest Trail, in the Town of Mammoth Lakes, County of Mono (APN-033-041-006-000) as further described in Exhibit A incorporated herein (the "Property"). The Property will be improved with fifteen (15) units of housing, including a manager's unit (the "Improvements"). The
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Property and Improvements are referred to in this Agreement as the "Development."
3. Owner acquired the Property with funds from HCD pursuant to the Homekey program and related Standard Agreement No. 21-HK-17233 between HCD (as Grantor), and the Town, Mammoth Lakes Housing, Inc., and the Owner (together as Grantees), dated as of June 1, 2022 (the “Original Standard Agreement”), as amended by Standard AgreementAmendment No. 1, dated March 10, 2023 (the "First Amended Standard Agreement" and collectively with the Original Standard Agreement, the "Standard Agreement"), as such may be further amended from time to time. The Homekey Program was established during the COVID-19 Pandemic to assist Homeless Households and At Risk of Homelessness Households as defined in Section 578.3 of Title 24 of the Code of Federal Regulation, impacted by COVID-19. Through its September 9, 2021 NOFA, HCD considers Homeless Households and At Risk of Homelessness Households to be inherently impacted by the COVID-19 Pandemic.
4. The Town and Owner intend for the Development to be used as Permanent Housing. This Agreement is being recorded pursuant to HCD's requirement that the Town cause to be recorded a fifty-five (55) year use restriction against the Property ensuring that Owner provides fifteen (15) "doors" of Permanent Housing at the Development which shall be low barrier and culturally competent and shall be focused on providing support for moving people out of crisis and into permanent housing as quickly as feasible.
NOW, THEREFORE, in consideration of the foregoing recitals, incorporated herein by this reference, and the covenants and promises contained in this Agreement, the receipt and sufficient of which are hereby acknowledged, the Parties declare as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1 Definitions.
When used in this Agreement, the following terms have the following meanings:
(a) "30% AMI Household" means a household whose Adjusted Income does not exceed 30% of Area Median Income.
(b) "Actual Household Size" means the actual number of persons in the applicable household.
(c) "Adjusted Income" means with respect to the household occupying a Unit, the income from all persons in the household including nonrelated individuals, calculated using the methods to calculate income adopted by HCD in accordance with the Homekey Program. (d) "Area Median Income" means the median gross yearly income, adjusted for Actual Household Size as specified herein, in the County of Mono, California as published from time to time by HUD. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the Town shall
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provide other income determinations that are reasonably similar with respect to methods of calculation to those previously published by HUD or HCD. (e) "At Risk of Homelessness Household" means a household that is at risk of homelessness, as defined in Section 578.3 of Title 24 of the Code of Federal Regulation. (f) "Eligible Household" means Homeless Households or At Risk of Homeless Households.
(g) "Homeless Household" means housing for individuals and families who are experiencing homelessness, as defined in Section 578.3 of Title 24 of the Code of Federal Regulation.
(h) "HUD" means the United States Department of Housing and Urban Development.
(i) "Permanent Housing" means housing, dwellings, or other living accommodations where the landlord does not limit the tenant’s length of stay or restrict the tenant’s movements and where the tenant has a lease and is subject to the rights and responsibilities of tenancy under California Civil Code Section 1940. (j) "Term" means the term of this Agreement which commences as of the date of this Agreement, and unless sooner terminated pursuant to the terms of this Agreement, ends fifty-five (55) years later.
(k) "Unit" or "Doors" means one or all of the fifteen (15) units in the Development, excluding the manager's unit.
ARTICLE 2.
AFFORDABILITY AND OCCUPANCY COVENANTS
Section 2.1 Occupancy Requirements.
(a) During the Term, Owner shall provide fifteen (15) doors at the Development that will be occupied by, or, if vacant, available for occupancy by Eligible Households. The Development shall include thirteen (13) studio units and two (2) one-bedroom units. During the Term, two (2) studio units shall be made available for occupancy to Eligible Households that qualify as 30% AMI Households, the balance of the units shall be made avaible to Eligible Households.
Section 2.2 Accessibility. Owner, or its agent(s), shall operate the Development at all times in compliance with all applicable federal, state, and local disabled persons accessibility requirements including, but not limited to the applicable provisions of the Standard Agreement.
ARTICLE 3.
OPERATION OF THE DEVELOPMENT
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Section 3.1 Residential Use; Compliance with Standard Agreement.
Owner shall operate the Development as Permanent Housing, and in accordance with the terms and conditions of this Agreement and the Standard Agreement.
Section 3.2 Covenants to Run with the Land.
The Town and Owner hereby declare its express intent that the provisions this Agreement shall run with the land and shall bind all successors in title to the Development utilized to provide the fifteen (15) doors; provided, however, that on the expiration of the Term, said covenants and restrictions expire.
Section 3.3 Enforcement by the Town.
The Town shall retain the right to enforce this Agreement following any transfer of the Development by Owner. If Owner's successor in ownership (either in whole or in part) fails to cure the default within thirty (30) days after the Town provided notice in writing of the default or, if the default cannot be cured within thirty (30) days, failed to commence to cure within thirty (30) days and thereafter diligently pursue such cure and complete such cure within sixty (60) days, the Town shall have the right to enforce this Agreement by any remedy provided by law.
Section 3.4 Attorneys' Fees and Costs. In any action brough to enforce this Agreement, the prevailing party must be entitled to all costs and expenses of suit, including reasonable attorneys' fees. This section must be interpreted in accordance with California Civil Code Section 1717, or successor section, and any judicial decisions interpreting that statute.
Section 3.5 Nondiscrimination.
(a) There shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, source of income (e.g., SSI), disability, ancestry, age, or military and veteran status, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any Unit nor shall Owner or any person claiming under or through the Owner, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of residents, lessees, sublessees, subtenants, or vendees of any Unit or in connection with the employment of persons for the construction, operation and management of any Unit. Owner shall, to the extent applicable, comply with Executive Orders 11246, 11375, 11625, 12138, 12431, 12250, 13672, Title VII of the Civil Rights Act of 1964, the California Fair Housing and Employment Act and other applicable Federal, State and local laws and regulations and policies relating to equal employment and contracting opportunities, including laws and regulations hereafter enacted. All deeds, leases or contracts made or entered into by Owner as to the Units or the Development or portion thereof, shall contain covenants concerning discrimination as prescribed by the Disposition Agreement Notwithstanding anything to the contrary, with respect to familial status, the above should not be construed to apply to housing for older persons as defined in Section 12955.9 of the Government Code and other applicable sections of the Civil Code as identified in Health and Safety Code Section 33050(b).
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(b) Owner shall cause the Development to be operated at all times in compliance with all applicable provisions of: (i) the Unruh Act, including but not limited to California Civil Code Sections 51.2, 51.3 and 51.4 which relate to the requirements for lawful senior housing; (ii) the California Fair Employment and Housing Act, Government Code Section 12900 et seq., which relates to lawful senior housing; (iii) Section 504 of the Rehabilitation Act of 1973, (iv) the United States Fair Housing Act, as amended, 42 U.S.C. Section 3607(b) and 24 CFR 100.304, which relate to lawful senior housing; (v) the Americans With Disabilities Act of 1990, which relate to disabled persons access; and (vi) any other applicable law or regulation.
The provisions of this subsection will survive expiration of the Term or other termination of this Regulatory Agreement and remain in full force and effect. (c) Owner shall not discriminate against any applicants for tenancy or program participation on the basis of source of income or rent payment (for example, without limitation, Temporary Assistance for Needy Families (TANF) or Section 8).
Section 3.6 Notice of Expiration. Prior to the expiration of the Term, Owner shall provide by first-class mail, postage prepaid, a notice to all Residents containing the information and meeting the requirements set forth in California Government Code Sections 65863.10 and 65863.11, as such may be amended from time to time.
Section 3.7 Enforcement by the Town. If the Owner fails to perform any obligation under this Agreement, and fails to cure the default within thirty (30) days after the Town provided notice in writing of the default or, if the default cannot be cured within thirty (30) days, failed to commence to cure within thirty (30) days and thereafter diligently pursue such cure and complete such cure within sixty (60) days, the Town shall have the right to enforce this Agreement by any remedy provided by law; including but not limited to an action at law or equity to compel Owner's performance of its obligations hereunder, and/or for damages ARTICLE 4.
MISCLLANEOUS
Section 4.1 Governing Law.
This Agreement is governed by the laws of the State of California.
Section 4.2 Waiver of Requirements.
Any of the requirements of this Agreement may be expressly waived by the Town in writing, but no waiver by the Town of any requirement of this Agreement shall, or shall be deemed to, extend to or affect any other provision of this Agreement.
Section 4.3 Recording and Filing.
The Town and Owner shall cause this Agreement, and all amendments and supplements to it, to be recorded against the Property in the Official Records of the County of Mono.
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Section 4.4 Amendments.
This Agreement may be amended only by a written instrument executed by the Parties hereto or their successors in title that is duly recorded in the Official Records of the County of Mono.
Section 4.5 Notices.
Formal notices, demands, and communications between the Parties delivered under this Agreement shall be in writing and be deemed received on the delivery or refusal date sown on the delivery receipt if (i) personally delivered by a commercial service which furnishes signed receipts of delivery; or (ii) mailed by certified mail, return receipt requested, postage prepaid, addressed as follows:
The Town: Town Mammoth Lakes
437 Old Mammoth Road, Suite 230
Mammoth Lakes, CA 93546
Attn: Daniel C. Holler, Town Manger
Owner: Innsbruck Lodge Affordable Housing, LLC
Mammoth Lakes Housing, Inc.
P.O. Box 1609
Mammoth Lakes, CA 93526
Attn: Patricia Robertson, Executive Director
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected Party may from time to time designate by mail as provided in this Section. Receipt will be deemed to have occurred on the date down on a written receipt as the date of delivery or refusal of delivery (or attempted delivery if undeliverable).
Section 4.6 Subordination.
This Agreement shall be recorded in first lien position and shall not be subordinated to any lien or encumbrance proposed to be recorded against the Property.
Section 4.7 Assignment. The Town may assign their rights and obligations under this Agreement to any instrumentality of the Town or other public entity.
Section 4.8 No Claims. Nothing contained in this Agreement shall create or justify any claim against the Town by any person that Owner may have employed or with whom Owner may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the Development.
Section 4.9 Third Party Beneficiaries. The parties acknowledge and agree that the Department of Housing and Community Development is an express third party beneficiary of the affordability restrictions set forth herein and shall be entitled to enforce the affordability restrictions set forth herein solely through an action for specific performance, as if HCD was a party herein.
The Department has made the Grant in reliance on this Agreement, and that the Department has a
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direct right of enforcement against the Owner in the event of the Owner’s breach, default, or other non-compliance under this Agreement, which right is exercisable in the Department’s sole and absolute discretion. There shall be no other third-party beneficiaries to this Agreement.
Section 4.10 Term. The provisions of this Agreement shall apply to the Development for the entire Term.
Section 4.11 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining portions of this Agreement will not be any way affected or impaired thereby.
Section 4.12 Multiple Originals; Counterparts. This Agreement may be executed in multiple originals, each of which is deemed to be an original and may be signed in counterparts.
Section 4.13 Entire Agreement. This Agreement constitutes the entire Agreement between the Parties and no modification hereof shall be binding unless done in accordance with Section 4.4 of this Agreement.
[Signatures on following page.]
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IN WITNESS WHEREOF, the Town and Owner have executed this Agreement by duly authorized representatives, all on the date first written above.
INNSBRUCK LODGE AFFORDABLE HOUSING,
LLC, a California limited liability company
By: MAMMOTH LAKES HOUSING, INC., a
California nonprofit public benefit corporation, its
sole and managing member
By: ____________________________________
Patricia Robertson, Executive Director
Date: ______________________________________
THE TOWN OF MAMMOTH LAKES. political
subdivision of the State of California
By: ______________________________________
Daniel C. Holler, Town Manager
Date: ______________________________________
ATTEST:
_______________________
Jamie Gray, Town Clerk
APPROVED AS TO FORM:
Andrew Morris, Town Attorney
By:
[All signatures must be notarized.]
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STATE OF CALIFORNIA )
)
COUNTY OF __________________)
On ____________________, before me, ___________________________, Notary Public, personally appeared ____________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_______________________________________________________________________ Name: _______________________________________________________________ Name : Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
THE LAND REFERRED TO HEREIN IS DESCRIBED AS FOLLOWS:
PARCEL 1 OF PARCEL MAP NO. 36-51 IN THE TOWN OF MAMMOTH LAKES, COUNTY OF MONO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1, PAGE 106 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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EXHIBIT E
PARTICIPANT SELCTION PLAN
Tenant Selection Plan
Innsbruck Lodge
Project Homekey – Permanent Affordable Housing
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Table of Contents
Part 1. Introduction / Overview
Part 2. Housing First Certification
Part 3. Tenant Selection
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1. Introduction / Overview
Mammoth Lakes Housing, Inc. (MLH), the Sponsor, is developing Innsbruck Lodge in the North Village Specific Plan neighborhood of Mammoth Lakes, California.
Mammoth Lakes suffers from a severe lack of affordable housing in relation to the high percentage of low-wage recreation and tourism jobs. For that reason, there are a lot of working homeless couch-surfing, living in overcrowded households, in vehicles, camping in the forests, etc.
Innsbruck Lodge is a former hotel which will be converted to permanent affordable housing through the State of California’s Project Homekey Program.
The Sponsor, through its Housing Navigator Program, will provide overall service coordination for Innsbruck Lodge. MLH has partnered with Mono County Social Services and other local service providers to provide any intensive case management that the tenants require. It is MLH’s goal to create a service delivery system that can adapt to changing needs and circumstances of the tenants during initial occupancy and throughout the life of the project.
The Sponsor subscribes to a Housing First model of housing provision. Housing First has proven to reduce emergency room visits, hospitalization, shelter use, detox services, and incarceration.
Due to this, coordination with existing service providers paired with case management at MLH is the proposed model for this site.
Target Population
MLH has developed the Innsbruck Lodge for the purpose of serving single individuals and families who are homeless or who are at-risk of homelessness by virtue of their low incomes as defined in Section 578.3 of Title 24 of the Code of Federal Regulation. As described above, many of our homeless are working and earning incomes up to 80% of the Area Median Income.
Many of these households will also have special needs, including, but not limited to mental illness, co-occurring mental illness and substance abuse issues, physical disabilities, developmental disabilities, HIV/AIDS, and domestic violence issues. Some of the tenants may also be youth exiting the foster care system.
The Sponsor has devised a rent structure that is appropriate for the target populations. The Innsbruck Lodge will consist of 13 studio apartments and 2 one-bedroom units. MLH has obtained financing through Project Homekey, Mono County, and the Town of Mammoth Lakes, for the entire project. Utilizing these sources, MLH is able to establish affordable rents at the following levels: 30%, 60%, and 80% AMI.
Service Needs
More than two decades of experience in affordable housing has demonstrated that special needs populations, and particularly homeless and at-risk individuals and families, require a rich array
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of supportive services to help them maintain stable housing, to achieve their life goals, and to grow and thrive towards greater self-determination and self-sufficiency. MLH has researched projects with populations that are similar to the Innsbruck Lodge and consulted with experts in the field of supportive housing to arrive at the following description of the expected service needs of the target population.
Population Service Needs
All tenants Intake and assessment, information and referral, recreational and socialization activities, community building activities, support groups, etc.
Homeless individuals
and families
(including
chronically homeless)
Intensive case management, with emphasis on behavioral health and primary health issues, independent living skills, and
employment/educational goals. Intensive case management includes individualized service planning and goal setting, coordination of services, counseling and support, crisis intervention, intensive assistance with accessing mainstream services and other communitybased resources. The service needs of homeless families will also include parenting support, childcare referrals, etc.
Developmentally
disabled tenants
Intensive case management, with emphasis on independent living skills and vocational/educational goals. Intensive case management includes individualized service planning and goal setting, counseling and support, coordination of services, and assistance with accessing mainstream services and other community-based resources.
Extremely low
income individuals
and families at-risk of
homelessness
Case management, with emphasis on independent living skills and employment/educational goals, behavioral health and primary health issues as needed, domestic violence counseling and parenting support as appropriate. Case management includes individualized service planning and goal setting, counseling and support, coordination of services, and assistance with accessing mainstream services and other community-based resources. Families in this group will also have service needs in the area of childcare and after-school programs.
Low income
individuals and small
families
Service coordination, with emphasis on employment and training services and resources for families and children. Service coordination includes information and referral, with some follow through to help tenants access needed services.
Working homeless Service coordination, with emphasis on employment and training services and resources for families and children. Service coordination includes information and referral, with some follow through to help tenants access needed services. Potential referral to homeownership programs or preparation for home ownership education.
Tenant Selection Plan
Innsbruck Lodge
Project Homekey – Permanent Affordable Housing
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2. Housing First Certification §501
This project promotes Housing First.
Housing First is an approach to serving people experiencing homelessness that recognizes a homeless person must first be able to access a decent, safe place to live, that does not limit length of stay (permanent housing), before stabilizing, improving health, reducing harmful behaviors, or increasing income. Under the Housing First approach, anyone experiencing homelessness should be connected to a permanent home as quickly as possible, and programs should remove barriers to accessing the housing, like requirements for sobriety or absence of criminal history. It is based on the “hierarchy of need:” people must access basic necessities—like a safe place to live and food to eat—before being able to achieve quality of life or pursue personal goals. Finally, Housing First values choice not only in where to live, but whether to participate in services. For this reason, tenants are not required to participate in services to access or retain housing.
While Housing First recognizes housing is a necessary precursor to treatment, Housing First does not mean “housing only.” On the contrary, Housing First acknowledges social services and care coordination are necessary elements of housing stability and quality of life.
In 2016, the California Legislature passed Senate Bill 1380 (Mitchell). It required all housing programs to adopt the Housing First model. The Legislation defined Housing First with these “core components”:
• Tenant screening and selection practices promote accepting applicants regardless of their sobriety or use of substances, completion of treatment, or participation in services.
• Applicants are not rejected on the basis of poor credit or financial history, poor or lack of rental history, criminal convictions unrelated to tenancy, or behaviors that indicate a lack of "housing readiness."
• Housing providers accept referrals directly from shelters, street outreach, drop-in centers, and other parts of crisis response systems frequented by vulnerable people experiencing homelessness.
• Supportive services emphasize engagement and problem solving over therapeutic goals and service plans that are highly tenant-driven without predetermined goals. • Participation in services or program compliance is not a condition of housing tenancy.
• Tenants have a lease and all the rights and responsibilities of tenancy. • The use of alcohol or drugs in and of itself, without other lease violations, is not a reason for eviction.
• Funding promotes tenant selection plans for supportive housing that prioritize eligible tenants based on criteria other than "first-come-first-serve," including, but
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not limited to, the duration or chronicity of homelessness, vulnerability to early mortality, or high utilization of crisis services.
• Case managers and service coordinators are trained in and actively employ evidence-based practices for engagement, including motivational interviewing and client-centered counseling.
• Services are informed by a harm-reduction philosophy that recognizes drug and alcohol use and addiction as a part of tenants' lives, where tenants are engaged in nonjudgmental communication regarding drug and alcohol use, and where tenants are offered education regarding how to avoid risky behaviors and engage in safer practices, as well as connected to evidence-based treatment if the tenant so chooses.
• The project and specific apartment may include special physical features that accommodate disabilities, reduce harm, and promote health and community and independence among tenants.
The federal and State government recognize Housing First as an evidence-based practice. In fact, a settled and growing body of evidence demonstrates—
• Tenants accessing Housing First programs are able to move into housing faster than programs offering a more traditional approach.
• Tenants using Housing First programs stay housed longer and more stably than other programs.
• Over 90% of tenants accessing Housing First programs are able to retain housing stability.
• In general, tenants using Housing First programs access services more often, have a greater sense of choice and autonomy, and are far less costly to public systems than tenants of other programs.
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3. Tenant Selection
Non-Discrimination
It is the policy of this property to comply fully with all applicable fair housing and civil rights requirements in 24 CFR 5.105(a), including, but not limited to, the Fair Housing Act; Title VI of the Civil Rights Act of 1964; Section 504 of the Rehabilitation Act of 1973; Title II of the Americans with Disabilities Act; and Section 109 of the Housing and Community Development Act of 1974. The property must also comply with HUD’s Equal Access to Housing in HUD Programs regardless of Sexual Orientation or Gender Identity requirements and any legislation protecting the individual rights of residents, applicants or staff which may subsequently be enacted.
The property will not discriminate on the basis of race, color, sex, sexual orientation, gender identity, religion, age, handicap, disability, or national origin in the leasing, rental, or other disposition of housing or related facilities, or in the use or occupancy thereof. In addition, the property will not:
Deny to any applicant the opportunity to apply for housing, nor deny to any eligible applicant the opportunity to lease housing suitable to its needs; Provide housing which is different from that provided others; Subject a person to segregation or disparate treatment; Restrict a person's access to any benefit enjoyed by others in connection with the housing program;
Treat a person differently in determining eligibility or other requirements for admission; Deny a person access to the same level of services; or Deny a person the opportunity to participate in a planning or advisory group that is an integral part of the housing program.
The property shall not automatically deny admission to a particular group or category of otherwise eligible applicants. Each applicant in a particular group or category will be treated on an individual basis in the normal processing routine for property eligibility.
MLH must use referrals to the Homekey Assisted Units through the local Coordinated Entry System (CES) or another comparable prioritization system based on greatest need shall be used.
All referral protocols for Homekey Assisted Units must be in a tenant selection plan developed in collaboration with the Eastern Sierra Continuum of Care and implemented consistent with the requirements set forth in the Homekey NOFA. The Sponsor shall select the greatest need eligible households that are able to pay affordable rents sufficient to maintain the long-term financial feasibility of the Development, consistent with this Tenant Selection Plan and the Eastern Sierra Continuum of Care Housing Referral Protocol attached hereto as Attachment A, and incorporated herein by this reference.
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Section 504 of the Rehabilitation Act of 1973
It is the policy of this property to assure that qualified individuals with disabilities are not discriminated against on the basis of their disability. The property also assures that these individuals will have equal opportunity to receive and enjoy the benefits of living at the property. • Reasonable Accommodations
The property will seek to identify and eliminate situations or procedures that create a barrier to equal housing opportunity for all. In accordance with Section 504 of the Rehabilitation Act of 1973, the property will make reasonable accommodation for individuals with disabilities (applicants or residents). Such accommodations may include changes in the method of administering policies, procedures, or services at this property where such modifications would be necessary to afford full access to the housing program for qualified individuals with disabilities.
In reaching a reasonable accommodation with, or performing structural modifications for otherwise qualified individuals with disabilities, the property is not required to:
• Make structural alterations that require the removal or altering of a load-bearing structural member;
• Provide support services that are not already part of its housing programs; • Take any action that would result in a fundamental alteration in the nature of the program or service;
• Take any action that would result in an undue financial and administrative burden on the property, including structural impracticality as defined in the Uniform Federal Accessibility Standards (UFAS).
• Information Regarding Disabilities
The property ensures that any questions related to disability on the application for housing, have to do with program eligibility, and allowable medical or disability deductions for housing applicants who wish to take advantage of those deductions. It is not required that any information regarding a possible disability be revealed other than for program eligibility requirements.
• Neutral Policies
The property will make reasonable adjustments to rules, policies, practices, and procedures in order to enable an applicant or resident with a disability to have an equal opportunity to use and enjoy the unit and the common areas of a dwelling, or to participate in or have access to other activities conducted or sponsored by the owner.
• Auxiliary Aids to Ensure Effective Communication
The property will seek to effectively communicate with applicants, residents, and members of the public who are individuals with disabilities. The use of auxiliary aides will be implemented when necessary. The property asks for 7-day notice in order to make any service, meeting, interview, appointment, or any business accessible. Requests for auxiliary aids may include visual alarms, tactile signs, visual doorbells, and other communication auxiliary aids available to management.
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• Improving Access to Services for Persons with Limited English Proficiency (LEP) Executive Order (E.O.) 13166 requires Federal agencies and grantees to take affirmative steps to communicate with persons who need services or information in a language other than English.
Housing owners must take reasonable steps to ensure meaningful access to the information and services they provide for persons with LEP. This may include interpreter services and/or written materials translated into other languages. • Assistance Animals
The property will allow assistive animals, which are defined as animals that work, provide assistance, perform tasks for the benefit of a person with a disability or provide emotional support to alleviate identified symptoms or effects of a person's disability. These animals, often referred to as service animals, support animals, or therapy animals, perform many disability-related functions, including but not limited to guiding individuals who are blind, alerting individuals who are deaf, providing minimal protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support. No pet deposit is required for assistive animals. The property requires a written request for a reasonable accommodation animal request and will provide assistance in completing the written request when necessary.
• Accessible Route
For mobility-impaired persons, this property is an accessible facility on an accessible route.
Documents that the resident would like to review may be examined during regular business hours. Please contact the management office to arrange to examine any documents. • Reasonable Modifications
The property will permit residents with disabilities to make reasonable modifications to their individual units at the expense of MLH with prior approval. Applicant may also make modifications at their own expense with prior approval from the property. When the resident vacates the unit, s/he must agree to restore the premises to the condition that existed before the modification, if requested by the property. The property will not require this restoration if the modification benefits the property or is needed by another resident.
To ensure with reasonable certainty that funds will be available to pay for restorations at the end of the tenancy, the owner may negotiate as part of such restoration an agreement requiring that the resident pay into an interest-bearing escrow account, over a reasonable period, a reasonable amount of money, not to exceed the cost of the restorations. The property will require that the work be done in a workman like manner, utilizing licensed contractors, and that any required building permits will be obtained.
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• Equal Access
The property will provide assistance in a confidential manner and setting to insure equal access to a resident's documents. An individual with disabilities is responsible for providing her/his own transportation to and from the location where all documents are kept. • Equal Access Rule
On February 3, 2012, HUD published a final rule entitled Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity (77 FR 5662) (“Equal Access Rule” or Rule”). The Rule is intended to ensure that housing across HUD programs is open to all eligible individuals and families regardless of actual or perceived sexual orientation, gender identity, or marital status.
Mitigating Circumstances
Section 504 and Fair Housing regulations state that consideration for mitigating circumstances shall be given to all persons applying for occupancy. If an applicant feels there is a mitigating circumstance or reasonable accommodation to be considered for determining occupancy, they should contact the property immediately to schedule a meeting.
Personal Information
It is the policy of the property to guard the privacy of individuals conferred by the Federal Privacy Act of 1974, and to ensure the protection of such individuals' records maintained by the property. Unless required by Federal or State law, neither the property nor its agents shall disclose any personal information contained in its records to any person or agency unless the individual about whom information is requested shall give written consent to such disclosure.
Determining Eligibility for Assistance
This privacy policy in no way limits the property's ability to collect such information as it may need to determine eligibility and income, compute rent, or determine an applicant's suitability for tenancy.
Information on Disabilities
Consistent with the intent of Section 504 of the Rehabilitation Act of 1973, any information obtained regarding disability will be treated in a confidential manner. · Investigations into Fraud/Criminal Activities
This privacy policy is not intended to preclude the cooperation of the property with local, State, or Federal investigations into fraud or criminal activity. With proper identification, the property is permitted to advise the investigating officer of the following:
• Whether or not an individual is a resident;
• How long an individual has been a resident; and
• Any other appropriate answers to questions related to the investigation.
The property will not make files, forms, or documents available to the investigating officer unless a court order for such action is provided.
Tenant Selection Plan
Innsbruck Lodge
Project Homekey – Permanent Affordable Housing
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Tenant Selection and Qualifying for Admission Under Project Homekey Program Eligibility Requirements
Defining Program Eligibility
Program Eligibility determines whether applicants are eligible for residency at this property, created utilizing State of California Project Homekey funds. The property will not admit ineligible applicants. In addition to qualifying as a household struggling with homelessness as defined by Project Homekey, a household must meet all of the following tests.
Income Limits
The State establishes income limits and revises them annually to ensure that assistance is provided only to income-eligible households. Income limits are based on household size and the annual income the household receives. These limits are available for review at the site or management office. The property will determine income eligibility prior to approving any applicant for tenancy.
Income-Limits Requirement
Applicants must have an income that is not greater than 80% of the Area Median Income (low-income) as established by HUD, and as published annually by TCAC as applicable to the property. Household income will be determined utilizing the State’s guidance on income calculations.
Authorization for Release of Information and Verification Forms All members of an applicant or tenant household, who are at least 18 years of age, and each head of household and spouse regardless of age, must sign the Authorization for Release of Information consent form prior to receiving assistance:
Refusing to sign the Authorization for Release of Information by any adult household member will cause the household to be ineligible for assistance. All adults regardless of whether they report income must sign these forms.
Only Residence
Applicants must agree that their rental unit will be their only residence. When applicants are undergoing income limit tests, they are required to reveal all assets they own including real estate. They are allowed to own real estate, whether they are retaining it for investment purposes as with any other asset, or have the property listed for sale. However, they may never use this real estate as a residence while they live in Project Homekey housing.
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Annual Recertification Policy
In addition, applicants must understand and agree to MLH’s requirement of an annual recertification of household income and circumstances per lease agreement program description, applicable regulatory agreement and Project Homekey guidelines Interim Recertification Policy
Further, to ensure that assisted families comply with income requirements, applicants must understand and agree to MLHs requirement that they are required to supply interim information to the property when the following occurs between annually scheduled recertifications:
• A household member moves in or out of the unit;
• An adult member of the household who was reported as unemployed on the most recentcertification/recertification obtains employment; or The household’s income cumulatively increases by $200 or more per month.
Eligibility to remain in the unit will be determined by the applicable regulatory agreement and funding guidelines.
Notification Policy
The property will inform residents, through required written notices, about their responsibility annually to provide information about the household's income, which is necessary to properly complete a recertification.
Verifying Information
The applicant must agree to furnish any information required to verify eligibility for occupancy including all sources of income, assets, and certain expenses. Applicants are hereby informed that, by law, the penalties for false information may include eviction, loss of assistance, fines up to $10,000, and imprisonment up to five years. The applicant must understand that a final decision of eligibility cannot be made until all verifications are complete. In addition, the applicant must understand that MLH has the right to compare any of the information supplied in the verifications with information that Federal, State, or local agencies have on the household's income and household composition. The owner must explain all program requirements to applicants, including the following verification procedures:
• Individual Verification Consent Forms
In addition to the Authorization for Release of Information and the appropriate Consent Forms indicated earlier, applicants must sign Individual Verification Forms that have been designed by the owner for obtaining documentation from third parties, to verify an applicant's income and deductions for determining the rent.
• Verification Documentation
Documentation used as part of the verification process may include checklists completed and signed by the applicant, verification forms completed and signed by third parties, dated notes of interviews with third parties whether by phone or in person, documents provided by household members, or affidavits/ certifications supplied by the applicant. The owner will be the final judge of the credibility of any verification submitted by an applicant.
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• Preferred Forms of Verification
Verifications must be attempted in the order indicated below. Each file will be documented to show that the owner attempted to obtain third party written documentation before relying on some less acceptable form of information.
• Upfront Income Verification through the Enterprise Income Verification (EIV) system;
• Third party written;
• Third party oral with a record kept in the file;
• Review of documents provided by the household; or
• Affidavits from the household.
• Notice of Ineligibility and Right to Request a Reasonable Accommodation If the property owner or tenant-referral organization determines that an applicant is ineligible on the basis of income or household composition, or because of failure by an applicant to sign and submit consent forms, the Owner will promptly notify the applicant in writing of the determination and its reasons, and that the applicant has the right to meet with the Owner (or Owner’s designee) and has the right to request a reasonable accommodation. The applicant may also exercise other rights if the applicant believes that he or she is being discriminated against on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, disability or familial status.
Qualifying for Admission Under P r o j e c t H o m e k e y Eligibility Requirements
Defining Project Eligibility
Project Eligibility establishes whether tenant applicants are eligible to reside in the specific property to which they are applying. This property has units designed to serve all household types. The Occupancy Standards listed below take into consideration not only household type, but also household size and what unit sizes are available in the property.
Occupancy Standards
When applying to the property, the appropriately sized unit must be in the unit configuration within the development. Units are assigned according to household size and composition. If the appropriate unit size is not available at the time of application, the applicant will be put on a waiting list. To avoid overcrowding, and in order to be consistent, we have adopted the following occupancy standards.
Bedrooms Minimum Maximum
0 1 2
1 1 3
Project Homekey Eligible Households
MLH must use referrals to the Homekey Assisted Units through the local Coordinated Entry System (CES) or another comparable prioritization system based on greatest need shall be used.
All referral protocols for Homekey Assisted Units must be in a tenant selection plan developed
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in collaboration with the Eastern Sierra Continuum of Care and implemented consistent with the requirements set forth in the Homekey NOFA. The Sponsor shall select the greatest need eligible households that are able to pay affordable rents sufficient to maintain the long-term financial feasibility of the Development, consistent with this Tenant Selection Plan and the Eastern Sierra Continuum of Care Housing Referral Protocol, attached hereto as Attachment A, and incorporated herein by this reference.
Assigning Units for Persons with Physical Disabilities
The property will always give a household that has indicated a need for certain unit accommodations because of a disability. The property asks the household to decide for itself, in compliance with Section 504 of the Rehabilitation Act, whether a unit meets the needs of the household. The household will be notified whenever any unit becomes available, without regard to unit accessibility, pursuant to the Tenant Selection procedures below. The property will never prohibit an eligible household with a member who has a disability from accepting a suitable non-accessible unit if no accessible unit is available when the household reaches the top of the waiting list. If the applicant decides to accept a standard unit, s/he may request some modification to the unit as a reasonable accommodation. Depending on the nature of the needed modification, it may be paid for by the project, up to an amount.
Reasonable Accommodation
The property will consider requests for reasonable accommodations from applicants/residents with disabilities, in order that they may benefit from the use and enjoyment of the dwelling units.
The applicant/resident must be able to show that the requested accommodation is necessary, and that there is a strong, identifiable relationship between the requested accommodation and the individual's disability.
If a household requests an accessible feature, policy modification, or other reasonable accommodation, the property may provide the requested accommodation unless doing so would result in a fundamental alteration in the nature of the program, or an undue financial and administrative burden. A fundamental alteration is a modification that is so significant that it alters the essential nature of the operations of the property.
Policy for Unit Transfers
Requests from Residents
Once an applicant has become a resident, a transfer of units may be warranted. There are two (2) ADA units at this property. If a resident has an increase in household size, or has a medical/health condition that warrants a larger unit or a unit that has special design features for a person with disabilities, a transfer may be requested. On occasion, there may be other requests for transfers that the property will consider on a case-by-case basis. All transfer requests must be made in writing, and must state the reason for the request.
Requirement by Owner
On occasion, an owner may require a resident to transfer to a smaller unit size. This may occur when the household composition decreases and the household no longer qualifies for the unit size in which they are dwelling. If a unit of appropriate size is not available, the owner will not evict
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the household. However, if an appropriately sized unit is available, the household may be required to move in 30 days.
Acceptable Reasons for Transfers
Current residents can request a transfer to a different size unit after they have been a resident for a period of twelve (12) months and are in good standing. Current residents may qualify for a unit transfer for one of the following conditions:
Medical/health conditions, including inability to use stairs, or the need for a livein attendant; Household size increases or decreases, or composition changes; There is a need for a unit with special design features for a person with disabilities; or
Other potential conditions not related to health, which will be reviewed on a caseby-case basis by the owner.
Placement on Transfer Waiting List
If the property supervisor approves a request for a transfer to a different unit, and there is no current unit available, the resident will be placed on the property's transfer waiting list. In-house residents that must be transferred due to overcrowding will be transferred first. Residents needing transfers due to medical reasons must have a written physician's statement.
Procedures for Filling Vacancies
If a request for a transfer to a different unit is approved, the resident agrees to pay all transfer costs prior to the move. Costs may include damages that are beyond normal wear and tear.
However, if a resident is transferred as an accommodation to a household member's disability, then the owner may be obligated to pay the costs associated with the transfer as discussed under Section 504 of the Rehabilitation Act of 1973.
Priority for Filling Vacancies
The property will fill its vacant units with current residents awaiting transfers before applicants from the tenant general waiting list. Unit transfers that are required by management will take priority over resident requested transfers.
1.4 Qualifying for Admission under the Property's Standards Occupancy Standards Units are assigned according to household size and composition. If the appropriate unit size is not available at the time of application, the applicant will be put on a waiting list. To avoid overcrowding, and in order to be consistent, we have adopted the following occupancy standards.
Bedrooms Minimum Maximum
0 1 2
1 1 3
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Families with Children
The Fair Housing Act prohibits properties receiving Federal assistance from discriminating on the basis of familial status, defined by Congress as children under the age of 18, making it illegal to discriminate against families because of the presence of children. The property will neither exclude families with children, nor will they develop policies or procedures that have the purpose or effect of prohibiting children.
Counting Household Members
In order to determine the size of unit that would be appropriate for a particular household, the property will count all full-time members of the household including live-in aides and foster persons who will reside in the unit. In addition, the property will count all anticipated persons including the following:
Children expected to be born to a pregnant woman;
Children in the process of being adopted by an adult household member; Children whose custody is being obtained by an adult household member; Children who are temporarily in a foster home who will return to the household; Children in joint custody arrangements who are present in the household 50% or more of the time, but see below;
Children who are away at school and who live at home during recesses, but see below;
Children that are temporarily in a correctional facility/detention center who will return to the household.
Anticipated Children
Anticipated children that are not currently living in the unit will be taken into consideration when determining unit size, and in some cases when determining income limits. Household Addition Adoption: Counts for income limits and unit size. Household Addition Pregnancy: Counts for income limits and unit size. Household Addition Foster Child: Counts for unit size.
When these anticipated children become a reality and move into the unit, an interim recertification is required including the child as a household member if the addition is due to adoption or pregnancy or as a household member if the addition is due to a foster child.
Joint Custody Agreements
All families with single parents will be asked on their move-in and annual interim recertification checklists or questionnaires if they are in a joint custody agreement.
Children Who are Away at School
Management will not include as a household member a child who is away at school and who has established residency at another address or location as evidenced by a lease agreement. The new address or location is considered the student's principle place of residence.
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Remaining Household Members
If the qualifying member of a household leaves the unit, a determination will be made as to whether the remaining member(s) of the household will be eligible to receive assistance. To qualify as a remaining member, individuals must be a party to the lease when the qualifying member leaves the unit, and must be of legal contract age under state law.
If the eligible household member leaves the unit for any reason including death, the remaining family members are eligible to remain in the unit if they income-qualify.
Property Standards for Unit Assignment
Assigning a Smaller Unit Than Required
Management will consider assigning a household to a smaller unit size than the standards listed above if the household requests the smaller unit, is eligible for the smaller unit based on the number of household members, and occupancy of the smaller unit will not cause serious overcrowding, or will not conflict with the local codes.
Assigning Unit Larger Than Required
If there is no proper unit available, management may consider assigning a household to a larger unit than the standards listed above if no eligible household in need of the larger unit is available to move into the unit within 60 days, and the household agrees in writing to move out, at its own expense, when a proper size unit becomes available.
Change in Unit Size after Initial Occupancy
After a household moves into a unit, if the unit becomes underutilized due to a change in household size, management will require the household to move to a unit of appropriate size, if it is available.
Change in Need for Accessible Features
If a household is in an accessible unit but no longer needs the accessible features, management may request that the household move to another unit in the property.
Screening to Determine Applicant Eligibility
Applicant Screening Policy
All applicants for subsidized housing will need to submit a complete application. MLH staff will assist applicants, as needed, in understanding the application process and completing forms.
An applicant has the right to voluntarily withdraw from the application process at any time.
At the time of application submission, applicants will participate in an in-take interview at which time MLH staff will enter the household into the Coordinated Entry System (CES), to determine homelessness ranking.
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Violence Against Women Act
Criminal activity directly relating to domestic violence, dating violence, or stalking, engaged in by a member of a resident's household or any guest or other person under the resident's control, shall not be cause for termination of assistance, or occupancy rights if the resident or an immediate member of the resident's household is the victim or the threatened victim of that abuse.
An incident(s) of actual or threatened domestic violence, dating violence, or stalking will not be construed as serious or repeated violations of the lease by the victim (or threatened victim), and will not be "good cause" for the termination of the assistance, tenancy, or occupancy rights of a victim of such violence.
Form HUD-91066, Certification of Domestic Violence, Dating Violence or Stalking.
All current tenants will be provided the option to complete form HUD-91066, Certification of Domestic Violence, Dating Violence or Stalking. This form will also be made available to all families at the time of admission.
Form HUD-91067, Lease Addendum for VAWA
Form HUD-91067, HUD's lease addendum for the VAWA provisions, is a required addendum to every lease. If it is determined that physical abuse caused by a tenant is clear and present, the law provides management the authority to bifurcate the lease, and remove, evict, or terminate housing assistance to that individual, while allowing the victim, who lawfully occupies the home, to maintain tenancy. The eviction of, or termination action against the individual, will be done in accordance with the procedures prescribed by Federal, State, and local law. If such action is deemed necessary, an interim recertification will be processed reflecting the change in household composition.
Application Intake and Processing
Application Intake
All persons wishing to be admitted to the property, or placed on a waiting list, must complete an application. All applications will be taken through the Coordinated Entry System.
Communications with Applicants
All communications with applicants will be by first class mail, telephone, or through the applicable case manager/Owner. Failure to respond to communications may result in withdrawal of an application from further processing. The property will make exceptions to these procedures to take into account circumstances beyond the applicant's control, such as medical emergencies or extreme weather conditions. All communications will be in a form that the tenant can understand.
Race/Ethnicity Data Collection
The applicant provides self-certification of their race and ethnicity for data collection. Completing this form is optional and there is no penalty for not completing it.
Written and Signed Applications
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Written applications will be accepted from anyone who wishes to apply. Every application must be completed and signed by the applicant or their legal designee. The information requested on the application form includes:
Household characteristics such as name, sex, age, disability status (only where necessary to establish eligibility), need for an accessible unit, and race/ethnicity; General household contact information such as address, phone number, etc.; Sources and estimates of the household's anticipated annual income and assets; Higher education student status (only if a member of the household is a student in higher education);
Marketing information regarding how the applicant heard about the property; and Certification from the applicant stating the accuracy and completeness of information provided, and an acknowledgement that the applicant has read the Privacy Act and understands the disclosure requirements.
Staff will be prepared to assist any applicants who might have trouble completing the application form. This assistance might take the form of answering questions about the application, helping applicants who might have literacy, vision or language problems and, in general, making it possible for interested parties to apply for assisted housing.
Determining an Applicant's Eligibility
Preliminary Determination
Before any applicant is put on a waiting list, the property, in consultation with Owner will make a preliminary eligibility determination to ensure that there are no obvious factors that would make an applicant ineligible.
Verification Interview
Applicants will be contacted to schedule an interview to verify all information given on the application. The property will confirm and update all information provided on the application, and will explain program requirements, verification procedures, and penalties for false information, which include eviction, loss of assistance, fines up to $10,000, and imprisonment up to five years. The applicant will be asked to sign the release of information consent portion of the Authorization for Release of information and any other necessary verification requests.
Ineligible Applicants
At the completion of the verification process, applicants will be ineligible to move into the property for any one of the following reasons:
The applicant no longer meets the income requirements of the property; Household members have failed to sign the release of information forms; Verification Requirements
Required Information
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All information relative to the following items must be verified:
Income, assets, household composition, and Social Security numbers; Deductions for such things as age, disability, disability expenses, and medical costs; Documented ability and willingness to abide by lease requirements, previous history of tenancy, rent paying, caring for a home, and criminal activity of any household member.
All of the above information must be documented, and appropriate verification forms or letters placed in the applicant or resident file. No decision to accept or reject an application will be made until all verifications have been collected.
Preferred Forms of Verification
Verifications shall be attempted in the following order:
Third party written verification
Third party oral verification with a record kept on the file; Review of documents provided by the family, or affidavits from the family.
Management must document the file for clarification, and show that management attempted to obtain third party written documentation before relying on some less acceptable form of information.
Verification Documentation
Documentation used as part of the verification process may include:
Checklists completed as part of the interview process and signed by the applicant; Verification forms completed and signed by third parties; Reports/letters of interviews; and
Notes of telephone conversations with reliable sources.
At a minimum, such reports will indicate the date of the conversation, source of the information, name and job title of the individual contacted and a written summary of the information received.
Management staff will be the final judge of the credibility of any verification submitted by an applicant. If a staff member considers documentation to be doubtful, the property manager/owner will review it before making a ruling about its acceptability. Staff will continue to pursue credible documentation until it is obtained or the applicant is rejected for failing to produce it.
Source of Information
Sources of information to be checked may include; but are not limited to:
Coordinated Entry System;
Present and former employers;
Verifications and Rent Computations
Annual Income, which is used to determine eligibility, will be computed in accordance with the definitions and procedures established in State Guidelines.