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CC - Item 4F - Second Dwelling Unit AgreementROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER DATE: APRIL 14, 2015 SUBJECT: SECOND DWELLING UNIT AGREEMENT SUMMARY Rosemead Municipal Code (RMC), Title 17 "Zoning ", is the governing legislation that controls land uses. Chapter 17.30 "Second Dwelling Units ", of the City's zoning code, defines a second dwelling unit and includes the requirements for allowing them, which includes, but are not limited to, the maximum number of bedrooms, unit size, height limits, setbacks, and parking. In addition, Chapter 17.30 implies that the lot must already contain an existing single - family dwelling unit prior to the second dwelling unit being constructed. However, it is not uncommon for an applicant to request to build a new primary dwelling unit and a second dwelling unit at the same time. If it is the desire of the City Council to allow for concurrent construction of the primary dwelling unit and second dwelling unit, then applicants should be required to enter into a formal recordable agreement with the City. Staff Recommendation It is recommended that the City Council approve the "Second Dwelling Unit" Agreement (see Attachment "A ") and authorize the Community Development Director to execute this agreement when a written request is made by an applicant for the construction of a new primary dwelling unit in conjunction with a second dwelling unit. BACKGROUND The purpose of RMC Chapter 17.30 "Second Dwelling Units" is to implement Government Code Section 65852.2, which allows the City to adopt a second dwelling unit ordinance in lieu of being subjected to the State requirement for such units. This chapter includes several references to imply that the lot must already contain an existing single - family dwelling unit prior to the second dwelling unit being constructed. Currently, when the applicant is replacing the primary dwelling unit while also constructing a new second dwelling unit, staff will not allow the construction of the second dwelling unit to begin until the primary dwelling unit has been signed off by the Building & Safety Division for lath and stucco. However, more and more requests are being made by applicants to allow the construction of both units simultaneously. As the City Council has discretion over the City's zoning code and due to the number of recent ITEM NUMBER: City Council Meeting April 14, 2015 Page 2 of 10 requests, if it is the will of the City Council to allow for the construction of the primary unit and second unit concurrently, then applicants should be required to enter into a formal recordable agreement with the City. This agreement, which is included as Attachment "A ", outlines the conditions for the approval and consequences for breaching the agreement. The reason for this agreement is to ensure that the primary unit is built and receives a certificate of occupancy prior to the second unit receiving a certificate of occupancy. LEGAL REVIEW The "Second Dwelling Unit" Agreement has been reviewed and approved by the City Attorney. PUBLIC NOTICE PROCESS This item has been noticed through the regular agenda notification process. Submitted by: Michelle Ramirez Community Development Director ATTACHMENTS Attachment A: Second Dwelling Units Agreement City Council Meeting April 14, 2015 Page 3 of 10 ATTACHMENT "A" SECOND DWELLING UNIT AGREEMENT RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) ) City of Rosemead ) 8838 E. Valley Blvd. ) Rosemead, CA 91770 ) Attention: City Clerk ) (Space Above This Line for Recorder's Use Only) Exempt from recording fee per Gov. Code § 27383. SECOND UNIT CONSTRUCTION AGREEMENT BY AND BETWEEN THE CITY OF ROSEMEAD AND FOR THE CONSTRUCTION OF A SECOND UNIT LOCATED AT THIS SECOND UNIT CONSTRUCTION AGREEMENT (the "Agreement ") is made and entered into on this day of 2015 (the "Effective Date ") by and between the property owner ( "Developer "), and the CITY OF ROSEMEAD, a California municipal corporation ( "City "), with reference to the following facts and intentions: RECITALS A. On Developer submitted plans, specifications and drawings which are hereby incorporated into this Agreement, to the City of Rosemead for the construction of a primary front residence and second unit back residence located at Rosemead, CA (hereinafter referred to as "the Project'). B. Second units are permitted under State law Government Code section 65852.2 and the City's Municipal Code Chapter 17.30. C. The Developer has requested that the City permit the construction of both the primary front residence and the second unit back residence to occur at the same time. The City as a practice has not permitted such simultaneous construction. When similar unpermitted construction has happened in the past there have been issues with the failure to complete the primary front residence which creates a blighting condition on the neighborhood. D. City and Developer desire to enter an agreement providing for the construction of the primary front residence and second unit back residence to occur at the same time provided that a certificate of occupancy will only to be issued once the primary front residence has been issued a certificate of occupancy to avoid the issues described in Recital C. City Council Meeting April 14, 2015 Page 4 of 10 E. This Agreement will not affect any other requirements, approvals or permits that the Project may otherwise be subject to. AGREEMENT NOW, THEREFORE, in consideration of the faithful performance of the terms and conditions set forth in this Agreement, the parties hereto agree as follows: 1. Incorporation of Recitals The foregoing Recitals are true and correct and, together with all approvals and requirements of the City for the Project, are hereby incorporated into and form a material part of this Agreement. 2. Purpose; Effective Date 2.1 Purpose The purpose of this Agreement is to guarantee completion of the Project such that both the primary front residence and second unit back residence are completed in a timely manner. 2.2 Effective Date. The Effective Date of this Agreement shall be as set forth above. 3. Property Subject to Agreement The property which is the subject of this Agreement is located in the City of Rosemead, Los Angeles County, California, and is described in Exhibit B attached hereto and incorporated by this reference. 4. Issuance of Certificate of Occupancy Developer agrees and understands that the City of Rosemead will not issue a certificate of occupancy for the second unit back house, until the Developer receives a certificate of occupancy for the primary front residence. Issuance of the certificate of occupancy shall be in the sole discretion of the City, consistent with the law. 5. Completion of Project The Developer has requested that it be permitted to construct both the front unit and the back unit at the same time. Consistent with this request and to avoid the property being only developed with the back unit for any length of time, the Developer agrees that both units will be fully constructed within of the first permit for construction is issued by the City. 6. Indemnity. Indemnification Developer agrees to indemnify, defend and hold the City, its elective and appointed boards, commissions, officers, agents, employees and consultants, harmless from and against any and all claims, liabilities, losses, damages or injuries of any kind (collectively, "Claims ") arising out of Developer's, or Developer's contractors', subcontractors', agents' or employees', acts, omissions, or operations under this Agreement, including, but not limited to, the performance of the Work, whether such acts, omissions, or operations are by Developer or any of Developer's contractors, subcontractors, agents or employees, except to the extent such Claims are caused by the sole negligence or willful misconduct of the City. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. Developer shall defend the City as required by California Civil Code City Council Meeting April 14, 2015 Page 5 of 10 Section 2778, and with counsel reasonably acceptable to the City developer shall have no right to seek reimbursement from City for the costs of defense. Developer's obligation to indemnify City shall survive the expiration or termination of this Agreement. Breach of Agreement Opportunity to Cure; Remedies. 7.1. Notice of Breach and Default The occurrence of any of the following constitutes a breach and default of this Agreement: (1) Developer refuses or fails to complete the Project within the time set forth herein or abandons the Project. (2) Developer assigns the Agreement without the prior written consent of City. (3) Developer is adjudged bankrupt or makes a general assignment for the benefit of creditors, or a receiver is appointed in the event of Developer's insolvency. (4) Developer or Developer's contractors, subcontractors, agents or employees, fail to comply with any terms or conditions of this Agreement. (5) Any delay in the construction of any portion of the Work or repairs, which in the reasonable opinion of the City Engineer, endangers public or private property. The City may serve written notice of breach and default upon Developer and the financial institution holding the security. 7.2. Remedies City may bring legal action to compel performance of this Agreement and recover the costs of enforcing this Agreement City's administrative and legal costs. Developer agrees that if legal action is brought by City under this section of the Agreement, Developer shall pay all of the costs of suit; reasonable attorney fees, arbitration costs and such other costs as may be determined by the court or arbitrator. No failure on the part of City to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that City may have hereunder. Miscellaneous. 8.1 Compliance with Laws Developer shall fully comply with all federal, state and local laws, ordinances and regulations in the performance of this Agreement. Developer shall, at its own cost and expense, obtain all necessary permits and licenses for the Work, give all necessary notices, pay all fees and taxes required by law and make any and all deposits legally required by those public utilities that will serve the development on the Property. Copies and /or proof of payment of said permits, licenses, notices, fee and tax payments and deposits shall be furnished to the City Engineer upon request. 8.2. Notices Formal written notices, demands, correspondence and communications between City and Developer shall be sufficiently given if: (a) personally delivered; or (b) dispatched by next day delivery by a reputable carrier such as Federal Express to the offices of City and Developer indicated below, provided that a receipt for delivery is provided; or (c) if dispatched by first class mail, postage prepaid, to the offices of City and Developer indicated below. Such written notices, demands, correspondence and communications may be sent in the same manner to such persons and addresses as either party may from time -to -time designate by next day delivery or by mail as provided in this section. City Council Meeting April 14, 2015 Pape 6 of 10 City City of Rosemead 8838 E. Valley Blvd. Rosemead, CA 91770 Attn: Community Development Director Developer Notices delivered by deposit in the United States mail as provided above shall be deemed to have been served two (2) business days after the date of deposit if addressed to an address within the State of California, and three (3) business days if addressed to an address within the United States but outside the State of California. 8.3. Entire Agreement The terms and conditions of this Agreement constitute the entire agreement between City and Developer with respect to the matters addressed in this Agreement. This Agreement may not be altered, amended or modified without the written consent of both parties hereto. 8.4. Runs with the Land; Recordation This Agreement pertains to and shall run with the Property. Upon execution, this Agreement shall be recorded in the Official Records of Sonoma County. 8.5. Transfers; Assignments Developer may assign its obligations under this Agreement to successor owner(s) of the property with the prior written approval of the City. In connection with any such assignment, Developer and its assignee shall execute and deliver to City a written assignment and assumption agreement in a form acceptable to the City Attorney. 8.6. Time is of the Essence Time is of the essence of this Agreement and of each and every term and condition hereof. 8.7. Severability If any provision of this Agreement is held, to any extent, invalid, the remainder of this Agreement shall not be affected, except as necessarily required by the invalid provision, and shall remain in full force and effect. 8.8. Waiver or Modification Any waiver or modification of the provisions of this Agreement must be in writing and signed by the authorized representative(s) of each Party. 8.9. Relationship of the Parties. Neither Developer nor Developer's contractors, subcontractors, agents, officers, or employees are agents, partners, joint venturers or employees of City and the Developers relationship to the City, if any, arising herefrom is strictly that of an independent contractor. Developer's contractors and subcontractors are exclusively and solely under the control and dominion of Developer. Further, there are no intended third party beneficiaries of any right or obligation assumed by the Parties. 8.10. Binding Upon Heirs, Successors and Assigns The terms, covenants and conditions of this Agreement shall be binding upon all heirs, successors and assigns of the parties hereto; provided, however, that this Agreement shall not be binding upon a purchaser or transferee of any portion of the Property unless this Agreement has been assigned pursuant to Section 9.5, in which event this Agreement shall remain binding upon Developer. City Council Meeting April 14, 2015 Page 7 of 10 8.11. Governing Law; Venue This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law provisions. Any legal actions under this Agreement shall be brought only in the Superior Court of the County of Los Angeles, State of California. 8.14. Counterparts This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. 8.15. Interpretation. This Agreement shall be construed according to its fair meaning, and not strictly for or against any party. No presumptions or rules of interpretation based upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall apply to the interpretation of this Agreement. 8.16. Headings Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions contained in this Agreement. 8.17. Authority Each party executing this Agreement on behalf of a party represents and warrants that such person is duly and validly authorized to do so on behalf of the entity it purports to bind and if such party is a partnership, corporation or trustee, that such partnership, corporation or trustee has full right and authority to enter into this Agreement and perform all of its obligations hereunder. IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the Effective Date. Dated: "CITY" CITY OF ROSEMEAD, a California municipal corporation M ATTEST: City Clerk APPROVED AS TO FORM: Community Development Director City Attorney City Council Meeting April 14, 2015 Page 8 of 10 "DEVELOPER" Dated: Print name: Print City Council Meeting April 14, 2015 Page 9 of 10 ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) On before me, (here insert name and title of the officer) 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. Signature (Seal) City Council Meeting April 14.2015 Page 1of1 ACKNOWLEDGMENT STATE OF CALIFORNIA ) /os. COUNTY OF LOS ANGELES ) 703 before me, (hmm insert name and title of the officer) personally appeared , who proved toueou the basis ofsatisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged tvox: that bt/ubt/tkxy executed the same iobio/booYbcir authorized oupacdr(ios), and that bybi»/bc/Abeir signature(s) on the instrument the person(s), or the entity upon behalf of which the persoms) acted, executed the instrument. lcertify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS ng' hand and official seal. Signature