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HomeMy WebLinkAbout04/20/2010, C12 - AUTHORIZATION TO ACCEPT AN AGRICULTURAL CONSERVATION EASEMENT ON A SEVEN-ACRE PORTION OF THE FROOM council 4° w acEnaa Repoin "Nuwl� C I TY OF SAN LUIS O B I S P O FROM: Shelly Stanwyck,Assistant City Manager Prepared By: Neil Havlik,Natural Resources Manager SUBJECT: AUTHORIZATION TO ACCEPT AN AGRICULTURAL CONSERVATION EASEMENT ON A SEVEN-ACRE PORTION OF THE FROOM RANCH PROPERTY ON LOS OSOS VALLEY ROAD RECOMMENDATION Approve a Resolution authorizing the Mayor to accept the dedication of an Agricultural Conservation Easement covering an approximately seven-acre portion of Froom Ranch. DISCUSSION Background As part of the annexation and development of the so-called "Madonna Gap" property on Los Osos Valley Road (also known as the Prefumo Creek Commons), the City Council required that the project sponsors dedicate to the City of San Luis Obispo approximately 12 acres of land comprising the eastern portion of the property and an approximately 800-foot long reach of Prefumo Creek. This dedication is expected to be forthcoming in the next few months. When considering the Prefumo Creek Commons EIR and annexation, Council was aware that the annexation required approval by the San Luis Obispo Local Agency Formation Commission (LAFCo). With Prefumo Creek Commons, LAFCo has implemented a new policy that requires projects converting farmland to non-agricultural uses to conserve for permanent agricultural use an area equal to that being converted. In the case of Prefumo Creek Commons, nineteen acres is being converted to urban use, and therefore LAFCo has required that seven acres, in addition to the twelve acres being dedicated to the City, also be dedicated. To satisfy this LAFCo policy, City staff and the project sponsors identified an area of land across Los Osos Valley Road from the Prefumo Creek Commons property which met the LAFCo criteria for dedication (Attachment 1 - Vicinity Map). Time to Authorize Acceptance of An Agricultural Conservation Easement Council can now authorize acceptance of an agricultural conservation easement over a portion of Froom Ranch to satisfy the LAFCo requirement. The site for conservation contains the same soils as occur on the Prefumo Creek Commons property, although it has never been farmed. LAFCo policies, however, only require that the land be capable of being farmed, which is the case in this instance. The property in fact is used for livestock grazing and is largely a functioning seasonal wetland. This makes it very productive for wildlife in the winter and similarly productive for livestock forage in the summer. In addition, the site lies adjacent to Los g/staffAiavliWcouncilagendalfroom ranch easement dedication /� Council Agenda Report—Agriculture Conservation Easement Page 2 Osos Valley Road and to Calle Joaquin, and therefore provides a significant scenic amenity to the community as well as an agricultural one. Staff is pleased that the project sponsors have agreed to this arrangement, and grateful to LAFCo staff and the LAFCo Board for its support as well. CONCURRENCE Community Development staff support the acceptance of the easement as being in compliance with the City's General Plan and with actions required of the City by LAFCo in support of this project. FISCAL IMPACT This transaction will have very minor impacts on the City. There will be a need for annual monitoring of the property for compliance purposes, but given the ease of such monitoring (it could occur from Los Osos Valley Road, for example) this is not expected to be a significant cost. Any costs of enforcement actions would be able to be recovered from the Grantor should that occur. Attachments: 1. Vicinity Map 2. Draft Easement (without Exhibits) 3. A Portion of Conditions of Approval for the Prefumo Creek Commons annexation from the San Luis Obispo Local Agency Formation Commission 4. Resolution to Accept Dedication of a Conservation Easement over a portion of Froom Ranch c�a -� 0 ATTACHMENT I .r PRIME AG CONVERSION AREA APN:067-242-001 / 1 � - •t LAS�.F '�• �." •3 ' • GRAPHIC SCALE 200 400 sod (IN FEES 1 IN =400 FT w A. I . C Y • M I Sl ,r RIIM(EAS• Y 3 a ,;✓ IkE$EtkvATlb ' AREA T_1 t Ar. APN:067-241-024 _ • u'"�" ; • - • �y'�' ' , -y,� s EXHIBIT OF PROPOSED PRIME AGRICULTURE PRESERVATION AREA ANNEXATION OF 11980 LOVR *\ (THE TAP PARCEL'S OWNER BOTH PARCELS: IRISH HILLS PLAZA WEST LAND USE CATEGORY.AGRICULTURE(COUNTY) ' 0 1,2 —3 12-10-2009 ATTACHMENT 2- RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of San Luis Obispo Community Development Department 990 Palm Street San Luis Obispo, CA 93401-3249 OPEN SPACE AND AGRICULTURAL CONSERVATION EASEMENT AGREEMENT (NO RECORDING FEE -- EXEMPT) This Open Space and Agricultural Conservation Easement Agreement, is made and entered into this day of , 2010, by and between IRISH HILLS PLAZA WEST,LLC, a California corporation, hereinafter called"Owner", and the CITY OF SAN LUIS OBISPO, a municipal corporation of the State of California, hereinafter called "City". WITNESSETH WHEREAS, Owner owns certain property (the "Subject Property") situated within the County of San Luis Obispo (the "County"), as described in Exhibit"A", attached hereto and incorporated herein, commonly known as 10180 Los Osos Valley Road, San Luis Obispo (Assessors Parcel Number: 067-241-024), and WHEREAS, the Subject Property has certain agricultural resources, natural scenic beauty and existing openness, and WHEREAS, placement of an open space and agricultural conservation easement on a portion of the Subject Property was required by.the San Luis Obispo County Local iia -� ATTACHMENT Z Agency Formation Commission (LAFCo) pursuant to Condition of Approval No. 5 of County Planning Commission Resolution No. 2004-081 approving Conditional Use Permit No. D0200760, which approved annexation of nearby land into the City of San Luis Obispo, in order to meet specific conditions of annexation of farmland under the policies of the LAFCo, and WHEREAS, both Owner and City desire to preserve and conserve for the public benefit the natural scenic beauty and existing openness, natural condition and agricultural use of the Subject Property, and WHEREAS, the Owner has offered to dedicate this open space and agricultural conservation easement to preserve the site's beauty and existing openness by restricting Owner's use of and activities on the Subject Property through the imposition of a perpetual open space and agricultural conservation easement with the terms and conditions hereinafter set forth. NOW THEREFORE, in consideration of the above recitals, and in further consideration of the mutual promises, covenants and the conditions herein contained, the parties agree as follows: 1. Owner hereby grants to City, an open space and agricultural conservation easement (the"Easement") over the portion of the Subject Property (the "Easement Area") described in Exhibit `B" attached hereto and ATTACHMENT incorporated herein. Said grant of an open space and agricultural conservation easement conveys to City, an estate and interest in the Subject Property. The purpose of the open space and agricultural conservation easement is to allow continuation of prior historical agricultural activities on the property, including grazing and cultivation, and to otherwise restrict the use of the Subject Property as hereinafter set forth. 2. The restrictions hereby imposed upon the use of the Easement Area by Owner and the acts which Owner shall refrain from doing upon the Easement Area are, and shall be, as follows: a. The construction or placement of any building or other structure is prohibited in the Easement Area, except structures and improvements to be used solely for agricultural production on the Subject Property, including equipment sheds, irrigation systems, fencing, and improvements for agricultural production purposes and the sale of farm products predominately grown or raised on the Subject Property. All such structures and improvements,individually and combined, must be consistent with the provisions of this open space and agricultural conservation easement and Public Resources Code § 10262. Any such structures proposed to be built or placed within the Easement Area shall be subject to the reasonable prior review and approval of the City. iia - � ATTACHMENT 2 b. No residential dwellings may be constructed or placed in the Easement Area. c. No signs, billboards, or similar structures or devices or advertising of any kind or nature may be located on or in the Easement Area. d. No extraction of surface or subsurface natural resources (except water resources) may be allowed in the Easement Area. 3. The Easement Area may be used for wetland and biological resource mitigation banking. As used herein, mitigation banking means the restoration, creation, enchantment and/or preservation of wetlands and/or biological resources, for the purpose of providing compensation mitigation as a result of impacts to similar resources. 4. Owner shall retain and reserve all water rights of any kind or nature on the Subject Property, including the Easement Area. 5. The Subject Property may be subdivided, subject to obtaining all necessary permits and approvals; however, notwithstanding any such subdivision, the Easement Area shall not be reduced in size. 6. This Agreement shall remain in effect in perpetuity. 7. The terms and conditions contained herein shall be binding on the parties hereto and their heirs, successors and assigns. 8. Owner retains the right to perform any act on the Subject Property, including the Easement Area, not specifically prohibited or limited by this Agreement. These ownership rights include, but are not limited to, the right to exclude any member of the public from trespassing and the right -� ATTACHMENT 2 to sell, lease, or otherwise transfer the Subject Property, including the Easement Area, to anyone they choose. 9. Other than as specified herein, this Agreement is not intended to impose any legal or other responsibility on the City, or in any way to affect any existing obligation of the Owner as owner of the Subject Property including the Easement Area. Among other things, this shall apply to: (a) Taxes -- The Owner shall be solely responsible for payment of all taxes and assessments levied against the Subject Property including the Easement Area. If the City ever pays any taxes or assessments on the Subject Property or the Easement Area, or if the City pays levies on Owner's interest in order to protect City's interests in the Subject Property or the Easement Area, the Owner will reimburse the City for the same. (b) Upkeep and Maintenance --The Owner shall be solely responsible for the upkeep and maintenance of the Subject Property including the Easement Area, to the extent it may be required by law. The City shall have no obligation for the upkeep or maintenance of the Subject Property or the Easement Area. (c) Liability and Indemnification—In view of City's negative rights, limited access to the land, and lack of active involvement in the day-to- day management activities on the Subject Property or the Easement Area, Owner shall indemnify, protect, defend and hold the City, their officers, directors, members, employees, contractors, legal representatives, agents, successors and assigns harmless from and against all liabilities costs, losses, orders, liens, penalties, damages, expenses, or causes of action, claims, demands, or judgments, including without limitation reasonable attorney's fees, arising from or in any way connected with injury or the death of any person, or physical damage to any property, or any other costs or liabilities resulting from any act, omission, condition, or other matter related to or occurring on or about the Subject Property, including the Easement Area, regardless of cause, unless due to the negligence or willful misconduct of City. City shall be named additional insured on Owner's general liability insurance policy. 10. The City shall manage its responsibilities for the Easement, including, but not limited to, annual monitoring, such additional monitoring as C, ATTACHMENT circumstances may require, record keeping, and enforcement, for the purposes of preserving the agricultural productive capacity and open space character of the Easement Area in perpetuity. The City shall maintain a record of annual monitoring, describing the method of monitoring, condition of the Easement Area, stating whether any violations were found during the period, describing any corrective actions taken, and the resolution of any violation. 11. The City shall have the right to prevent and correct violations of the terms of this Agreement. With reasonable advance notice to the Owner, the City may enter the Easement Area for the purpose of inspecting for violations. If the City finds what it believes is a violation, it may at its discretion take appropriate legal action. Except when an ongoing or imminent violation could irreversibly diminish or impair the open space character and agricultural productivity of the Easement Area, the City shall give the Owner written notice of the violation and thirty (30) days to correct it, before filing any legal action. If a court with jurisdiction determines that a violation may exist or has occurred, the City may obtain an injunction to stop it, temporarily or permanently. A court may also issue an injunction requiring the Owner to restore the Easement Area to its condition prior to the violation. In any case where a court finds that a violation has occurred, the Owner shall reimburse the City for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorney's fees. The failure of the City to discover a violation C Id--7 ATTACHMENT L or to take immediate legal action shall not bar it from doing so at a later time. Without limiting Owner's liability therefore, the City shall apply damages recovered to the cost of undertaking any corrective action on the Easement Area. Should the restoration of lost values be impossible or impractical for whatever reason, the City shall apply any and all damages recovered to furthering the City's mission, with primary emphasis on agricultural easement acquisition and enforcement. 12. If the City should desire to transfer the Easement created by this Agreement to another qualified party, the City must first obtain written permission from the Owner, which permission shall not be unreasonably withheld. The request shall state the name of the qualified party to which the transfer is proposed, the reasons therefore, and such other information as the Owner may request. If written consent is given for the proposed transfer, the City may transfer the Easement created by this Agreement to: 1) a private nonprofit organization that, at the time of transfer, is a "qualified organization" under Section 170(h) of the U.S. Internal Revenue Code and under Section 815.3(a) of the Civil Code of California and has similar purposes to preserve open space and prime irreplaceable farmland, as well as agreeing to assume the responsibilities imposed by this Agreement; 2) if no such private nonprofit organization is willing to assume the responsibilities imposed by this Agreement, then the Easement created by this Agreement may be transferred to any public agency authorized to hold interests in real property as provided in section 815.3(b) ' ATTACHMENT 2- of of the Civil Code of California. Such a transfer may proceed only if the organization or agency expressly agrees to assume the responsibility imposed on the City by this Agreement. If the City ever ceases to exist or no longer qualifies under Section 170(h)of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall, upon consultation with the California Department of Conservation, transfer this Easement, pursuant to the California Public Resources Code Section 10235(b), to another qualified organization, as defined in Section 815.3 of the Civil Code of California, and having similar purposes that agrees to assume the responsibility imposed by this Agreement. 13. Any time the Subject Property itself, or the Easement Area, or any interest in either of them, is transferred by the Owner to any third party, the Owner shall notify the City in writing at least 30 days prior to such transfer, and the document of conveyance shall expressly incorporate by reference this Agreement. Any document conveying a lease of the Subject Property or of the Easement Area shall expressly incorporate by reference this Agreement. Failure of the Owner to do so shall not impair the validity of this Easement or limit its enforceability in any way. 14. This Easement may be amended only with the written consent of the Owner and City. Any such amendment shall be consistent with the purposes of this Agreement and with the City's easement amendment policies, and shall comply with Section 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section, and 0/a„ —1( ATTACHMENT 2- with with Section 815 et seq. of the Civil Code of California, or any regulations promulgated thereunder. 15. Termination of the Easement shall be governed by Sections 10270-10277 of the Public Resources Code of California. Termination of the easement through condemnation is subject to the requirements of Section 10261 of the Public Resources Code. If all or any portion of the Subject Property is acquired by eminent domain, or by purchase in lieu of eminent domain, City and Owner shall be paid by the condemnor(or purchaser) the respective values of each of their interest in the Easement Area at the time of condemnation (per Public Resources Code Section 10261(a) 2). Should the easement be condemned or otherwise terminated on any portion of the Easement Area, the balance of the Easement Area shall remain subject to this Agreement. In this event, all relevant related documents shall be updated and re-recorded by the City to reflect the modified Easement Area. 16. (a) This Agreement shall be interpreted under the laws of California, resolving any ambiguities and questions of the validity of specific provisions so as to give maximum effect to its conservation purposes. (b) References to authorities in this Agreement shall be to the statute, rule, regulation, ordinance or other legal provision that is in effect at the time this easement becomes effective. (c) No provision of this Agreement shall constitute governmental approval of Cia -ice ATTACHMENT 2 any improvements, construction or other activities which may be permitted under this Agreement. The Easement created by this Agreement pursuant to Civil Code section 815.1 shall run with the land in perpetuity. Every provision of this Agreement that applies to the Owner or City shall also apply to their respective agents, heirs, executors, administrators, assigns, and all other successors as their interests may appear. No merger of title, estate or interest shall be deemed effected by any previous, contemporaneous, or subsequent deed, grant, or assignment of an interest or estate in the Subject Property, or any portion thereof, to City, or its successors or assigns, it being the express intent of the parties that this Easement not be extinguished by, or merged into, or any other interest or estate in the Subject Property now or hereafter held by City or its successors or assigns. 17. Any notices to Owner and City required by this Agreement shall be in writing and shall be personally delivered or sent by first class mail, to the following addresses, unless a party has been notified by the other of a change of address: To Owner: Irish Hills Plaza West, LLC 284 Higuera Street San Luis Obispo, CA 93401 To City: City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 18. The Owner warrants that Owner has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Subject Property ATTACHMENT 2. and hereby promises to defend and indemnify City against all litigation, claims, demands, penalties and damages, including reasonable attorneys' fees, arising from or connected with any release of hazardous waste or violation of federal, state or local environmental laws. Notwithstanding any other provision herein to the contrary, the parties do not intend this Agreement be construed such that it creates in or gives the City: i. the obligations or liability of an "owner" or"operator" as those words are defined and used in environmental laws, as defined below, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 USC section 9601 et seq. And hereinafter"CERCLA"); ii. the obligations or liability of a person described in 42 USC section 9607 (a)(3) or(4); iii. the obligations of a responsible person under any applicable Environmental Laws, as defined below; iv. the right to investigate and remediate any Hazardous Materials, as defined below, associated with the Subject Property; or v. any control over Owner's ability to investigate, remove, remediate, or otherwise clean up any Hazardous Materials associated with the Subject Property. The term "Hazardous Materials" includes, without limitation, (a) material that e is aye ATTACHMENT 2- is is flammable, explosive, or radioactive; (b) petroleum products; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in the CERCLA (42 USC section 9601 et seq.), the Hazardous Materials Transportation Act (49 USC section 5101, et seq.), the Hazardous Waste Control Law (California Health and Safety Code section 25100 et seq.), and in the regulations adopted and publications promulgated pursuant to them, or any other applicable federal, state, or local laws, ordinances, rules, or regulations now in effect or enacted after this date. The term "Environmental Laws" includes, without limitation, any federal, state or local or administrative agency statute, regulation, rule, ordinance, order or requirement relating to pollution, protection of human health, the environment or Hazardous Materials. 19. Owner represents and warrants that Owner has good fee simple title to the Subject Property, free from any and all liens or encumbrances, except those set forth in Exhibit C, all of which have been subordinated to this Easement, and hereby promises to defend the same against all claims that may be made against it. Owner represents and warrants that the Subject Property is not subject to any other conservation easement whatsoever. Owner may grant subsequent conservation easements on the Easement Area,provided that such subsequent easements are for the purpose of wetland, wildlife habitat or biological resource creation, enhancement or preservation. City shall be notified in advance, in writing, of any proposed conservation or other easement on the Subject Property. Cla-'l� - " ATTACHMENT 2- 20. 20. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. 21. As attested by the signature of its Mayor affixed hereto, in exchange for consideration, the City hereby accepts without reservation the rights and responsibilities conveyed by this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this document on the day and year first written above. ALL SIGNATURES MUST BE NOTORIZED OWNER/GRANTOR IRISH HILLS PLAZA WEST, LLC By Date: CITY OF SAN LUIS OBISPO By Date: David F. Romero, Mayor WIty VED ASCD1tMFK RM: ISTIN (a -/,(0 orney ATTACHMENT 3 HaAk, Neil From: Dunsmore, Phil Sent: Wednesday, April 07,2010 2:27 PM To: Havlik, Neil Subject: FW: Lafco Conditions These are the conditions that were included Phil Dunsmore Associate Planner, AICP City of San Luis Obispo Community Development 919 Palm Street San Luis Obispo,CA 93401 (805) 781-7522 -----Original Message----- From: David Church [mailto:dchurch@slolafco.,com] Sent: Thursday, December 10, 2009 11:39 AM To: Dunsmore, Phil Subject: Conditions Hi Phil We are considering applying the following conditions-what do you think: Recommended Action: It is respectfully recommended that the Commission approve, by Qualization, reesolution, Annexation #74 to the City of San Luis Obispo, with the following conditions: Prior to filing the Certificate of Completion with State Board of the proponent shall submit to LAFCO documentation that a minimum of one acre for each acre of prime agricultural land being converted by the project has been permanently preserved. (The estimate in the EIR is that 19 acres is being converted with 11.9 acres being preserved. This leaves approximately 7.1 acres of prime agricultural with similar characteristics to be preserved. ) This condition shall be implemented consistent with San Luis Obispo LAFCO's Agricultural Policies. The proponent shall work with the City to develop agricultural irrigation to provide a source of water to the land being preserved on site consistent with Mitigation Measure AG-2 found in the Final EIR and this Staff Report. David Church, AICP San Luis Obispo LAFCO Executive Officer (805) 788-2096 Phone (805) 788-2072 FAX ATTACHMENT LRISH BILLS PLAZA EAST December 11,2009 David Church Executive Officer San Luis Obispo Local Agency Formation Commission 1042 Pacific Street,Suite A San Luis Obispo,CA 93401 Re: Annexation No.74(the"Gap"parcel) Dear Mr.Church: I understand that our application to annex our parcel located at 11980 Los Osos Valley Road will require permanent preservation of a certain amount of prime agricultural land in addition to the amount we are already preserving within the annexation parcel. I'm enclosing an exhibit that shows both the parcel to be annexed and our nearby parcel containing prime agricultural land. As you can see,we're offering area on this nearby parcel to satisfy LAFCo's mitigation requirement for permanent preservation. On behalf of Irish Hills Plaza East,LLC,the owner of both parcels, I am offering my assurance that we will permanently preserve the necessary acreage of appropriate land as required to mitigate for this annexation. If you have any questions please don't hesitate to contact me or our project agent, Patti Whelen. Sincerely, Clint Pearce Pearce Irish Hills Plaza East,LLC Enclosure: "Exhibit of Proposed Prime Agriculture Preservation Area" Cia-J� 284 Higuera Street San Luis Obispo CA 93401 Phone: 805-543-0300 Fax: 805-541-3067 C ATTACHMENT RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS O131SPO AUTHORIZING ACCEPTANCE OF AN OPEN SPACE AND AGRICULTURAL CONSERVATION EASEMENT ON REAL PROPERTY WHEREAS, Irish Hills Plaza East, LLC, a California corporation, ("Plaza East") is the owner in fee simple of certain real property in San Luis Obispo County, California, outside of but adjacent to the City of San Luis Obispo, described as Assessor's Parcel Number 067-242-014, which is proposed for annexation into the City of San Luis Obispo and development thereon; and WHEREAS, as part of the annexation process, Plaza East has been required to permanently protect through a conservation easement approximately seven acres of land suitable for agricultural uses by the San Luis Obispo Local Agency Formation Commission (SLO LAFCo), a local agency which governs changes in boundaries of municipalities and special districts within San Luis Obispo County; and WHEREAS, an area suitable for such protection has been identified nearby, and WHEREAS, said area, identified as a portion of Assessor's Parcel Number 067- 241-024, possesses natural resource values including agricultural production, wildlife and plant resources, and scenic open space values (the "Conservation Values") of great importance to Grantor, the people of the City of San Luis Obispo, SLO LAFCo, and the people of the State of California; and WHEREAS, the property owner, Irish Hills Plaza West, LLC ("Plaza West"), a California corporation, is willing to make such dedication of a conservation easement in order to meet conditions of the proposed annexation, and WHEREAS, the City of San Luis Obispo is a chartered municipal corporation of .the State of California that is authorized by law to accept Conservation Easements; and WHEREAS, the City of San Luis Obispo agrees by accepting this grant to honor the intentions of grantors stated herein and to preserve and protect in perpetuity the conservation values of the proffered area for the benefit of this generation and the generations to come. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Luis Obispo hereby: 1. Authorizes acceptance of the offer of donation of an Open Space and Agricultural Conservation Easement on a portion of Assessors Parcel Number 067-241-024, subject to non-substantive changes approved by the City Attorney; and 2. Authorizes and directs the Mayor to accept said Conservation Easement on behalf of the City of San Luis Obispo. OIC�__1 ATTACHMENT �}- Approved and adopted this 20"' day of April, 2010. On motion of , seconded by and on the following roll call vote: AYES: NOES: ABSENT: David F. Romero, Mayor ATTEST: Elaina Cano, City Clerk APPROVED AS TO FORM: i C nstine Dietrick, City Attorney ��� Cho