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HomeMy WebLinkAbout29-Development Services ORIGINAL CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION From:Valerie C. Ross, Director Subject: Resolution authorizing execution of a License and Agreement with JKS- Dept: Development Services Marshall Plaza LLC, a Delaware Limited Liability Company for encroachment of an Date: April 30, 2007 overhanging fagade and appurtenances in the right-of-way of a public alley located south of Second Street and west of"G" Street. MCC Date: May 21,2007 Synopsis of Previous Council Action: None Recommended Motion: Adopt Resolution. Valerie C. Ross Contact person: Mark Lancaster, Deputy Director/City Engineer Phone: 3305 Staff Report, Resolution Supporting data attached: and Agreement Ward: 1 FUNDING REQUIREMENTS: Amount:N/A Source: (Acct. No.) Acct Description) Finance: Council Notes: o2od ?- /,f-! v -4/7 5 2/ l 1'� /07 Agenda Item No. a CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Resolution authorizing execution of a License and Agreement with JKS-Marshall Plaza LLC, a Delaware Limited Liability Company for encroachment of an overhanging fagade and appurtenances in the right-of-way of a public alley located south of Second Street and west of "G" Street. BACKGROUND: On March 12, 2007 the Development Review Committee (DRC) approved Development Permit Type II (DP2) No. 06-29 to remodel the Marshall Plaza shopping center which is located at the southwest corner of"G" Street and 2nd Street. As part of the remodel, the applicant will be adding a fagade to the west and south faces of Building No. 707, the most southerly suite of which is occupied by Honeybaked Hams. During design review it was discovered that the fagade on the south side of the building will overhang an existing 24' wide public alley at that location. As a result, the applicant is requesting a permanent encroachment permit to overhang approximately 8' of the 24-foot wide alley. The applicant is proposing to channelize traffic to one 16-foot wide lane westbound only. The City Engineer has reviewed the request and concurs that the change will not adversely affect traffic circulation through the area. See the attached location map for the proposed encroachment. In exchange for the use of approximately 8' of the alley, the applicant has agreed to maintain the entire alley for as long as the license and encroachment agreement remains in effect. A separate construction permit from the Public Works Division will be required prior to start of work in the alley. The applicant will be responsible for obtaining all necessary permits from other agencies necessary to complete this work. Prior to start of any excavation in the encroachment area, the applicant will contact Underground Service Alert (USA) and arrange for the marking of all subsurface utilities. The applicant shall protect existing utilities during all uses of the encroachment area. Staff has field reviewed the site and determined that the encroachment into the alley will have minimal impacts on the adjacent properties. Access to adjacent properties will be maintained at all times, except for short periods of closure during construction. The applicant has paid the prescribed fee of$625.00 to cover administrative processing costs of this License and Agreement. 2 04/30/2007 9:50 AM CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report - Continued FINANCIAL IMPACT: None. RECOMMENDATION: Adopt resolution. Attachments: Location Map for Proposed Encroachment Permit Exhibit"A"—License and Agreement 3 04/30/2007 9:50 AM 133HI S 11911 ABliv JNUSIX3 �-+-� 110-itz a in co 0 a ZN U ~~I �— Z �I Z _g wa w � a 0 Q Z ui w O O w 2 N J F- O Z 5 0 3 L.I. Q m OUw °<� w O l-- M O w rv- E Z � n w0 w LU Q = w � U Q �j � p z I Y 0 _ � � U ssv'� 'a Q Z UlInS 9 VOL Ki 1S U w O J r z - O M _1 r� N O 19z I 1 � co Py RESOLUTION NO. 2 3 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING EXECUTION OF A LICENSE AND AGREEMENT WITH JKS- 4 MARSHALL PLAZA LLC, A DELAWARE LIMITED LIABILITY COMPANY FOR ENCROACHMENT OF AN OVERHANGING FA(rADE AND APPURTENANCES IN 5 THE RIGHT-OF-WAY OF A PUBLIC ALLEY LOCATED SOUTH OF SECOND 6 STREET AND WEST OF "G" STREET. 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. That the Mayor and Common Council of the City of San Bernardino 9 I10 hereby approves a License and Agreement with JKS-Marshall Plaza LLC, a Delaware Limited 11 Liability Company for encroachment of an overhanging facade and appurtenances in the right-of- 12 way of a public alley located south of Second Street and west of"G" Street. 13 SECTION 2. That the City Manager is hereby authorized to execute on behalf of the 14 City the License and Agreement between the City of San Bernardino and JKS-Marshall Plaza 15 16 LLC, a Delaware Limited Liability Company, a copy of which is attached hereto and 17 incorporated herein as Exhibit "A". 18 SECTION 3. The authorization to execute the above referenced license and agreement is 19 rescinded if the parties fail to execute it within sixty (60) days of the passage of this Resolution. 20 21 22 23 24 25 26 27 28 a I RESOLUTION .... AUTHORIZING AND DIRECTING EXECUTION OF A LICENSE 2 AND AGREEMENT WITH JKS-MARSHALL PLAZA LLC, A DELAWARE LIMITED LIABILITY COMPANY FOR ENCROACHMENT OF AN OVERHANGING FACADE 3 ! AND APPURTENANCES IN THE RIGHT-OF-WAY OF A PUBLIC ALLEY LOCATED SOUTH OF SECOND STREET AND WEST OF "G" STREET. 4 5 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 6 7 Common Council of the City of San Bernardino at a meeting thereof 8 held on the day of , 2007, by the following vote, to wit: 9 Council Members: AYES NAYES ABSTAIN ABSENT 10 11 ESTRADA 12 BAXTER 13 BRINKER 14 DERRY 15 KELLEY 16 JOHNSON 17 18 MCCAMMACK 19 20 City Clerk 21 The foregoing resolution is hereby approved this day of , 2007. 22 23 24 Patrick J. Morris, Mayor 25 City of San Bernardino Approved as to form: 26 JAMES F. PENMAN Q27 City Attorney 28 By. EXHIBIT "A" LICENSE AND AGREEMENT THIS LICENSE AND AGREEMENT is made and entered into this day of , 2007, by and between JKS-MARSHALL PLAZA LLC, A DELAWARE LIMITED LIABILITY COMPANY, hereinafter referred to as "Licensee," and the CITY OF SAN BERNARDINO, a municipal corporation hereafter referred to as "City." WITNESSETH: For and in consideration of the mutual promises and covenants herein contained, the parties hereto do hereby agree as follows: 1. City hereby gives permission, removable and terminable as hereinafter provided, to Licensee for encroachment of an overhanging fagade and appurtenances in the right-of-way of a public alley located south of Second Street and west of"G" Street, indicated in Attachment "1", and in accordance with that letter dated April 25, 2007, from Licensee (Attachment "2"), both attached and made a part hereof, and subject to any requirements or conditions as may be imposed by the Director of Development Services of City. 2. This permission is given to Licensee as an accommodation to Licensee and shall be subject to the requirement that the Licensee maintain the entire 24-foot wide alley in a condition acceptable to the City Engineer. 3. Licensee hereby acknowledges the title and paramount interest of City to the public right-of-way and agrees never to assail or resist said title or interest and to observe present or future set-back requirements relating thereto while this agreement is in force and effect. 1 of 6 EXHIBIT "A" 4. City and Licensee each reserves the right to terminate the permission hereby given at any time by giving Licensee at least thirty (30) days written notice of such termination, except that City may, at its election, terminate said permission forthwith at any time if Licensee shall fail to comply with or abide by each and all of the provisions hereof or keep each and all of the Licensee's promises herein. Waiver by City of any breach of any term or provision hereof shall not be deemed a waiver of any subsequent breach of the same or any other term or provision hereof. 5. Licensee agrees to install, use and maintain said encroachment as required by this Agreement. Said encroachment shall be maintained at all times in a safe neat sightly and good physical condition. City shall be the sole judge of the quality of maintenance, and upon written notice by City, through its Director of Development Services, stating in general terms how and in what manner the maintenance is required, Licensee shall be required to perform such required maintenance. If Licensee fails to do so, then City shall have the right to perform this maintenance, the cost of which shall be borne by Licensee. Licensee further agrees to install, use and maintain said encroachment in conformity with applicable Federal, State, and local laws, rules and regulations. Licensee shall at its own responsibility and expense obtain and keep in effect all licenses, bonds and permits necessary for the installation and existence of said encroachment. 6. Upon termination of this Agreement, Licensee agrees to immediately remove said encroachment from the public right-of-way and to restore the public right-of- way to the satisfaction of the Director of Development Services. If Licensee fails to exercise its duties under this paragraph, City shall have the right to remove said 2 of 7 EXHIBIT "A" encroachment and to restore the premises at no cost or liability to the City. Licensee covenants and agrees to reimburse City for such removal and/or restoration. 7. City shall in no way be responsible for loss of or damage to said encroachment or for any property belonging to or leased by Licensee, its officers, servants, agents or employees, that may be stolen, destroyed or in any way damaged during the installation, use or maintenance of said encroachment. 8. Licensee shall exercise its privileges under this license at its own risk. Licensee shall indemnify, defend and hold harmless City, its elective and appointive boards, commissions, officers, agents and employees from any costs, claims, damages, injuries, and liability resulting from, arising out of, or in any way connected with, the construction, installation, use and maintenance of said encroachment, the occupation or use of the public areas of such structure, both during and after the installation thereof, and including but not limited to any costs, claims, damages, injuries, and liability resulting from the conduct of Licensee or the employees, invitees, guests or agents of Licensee, or Licensee's failure to perform its promises in connection herewith. 9. The Licensee's attention is directed to Section 7-3, "Liability Insurance", of the Standard Specifications for Public Works Construction, 2006 Edition, providing that the Licensee shall furnish the City with policies or certificates of liability insurance prior to execution of the contract. All of the Insurance Policies shall name the City of San Bernardino as an additionally insured. The endorsement shall be provided by the agent of the insurance company and shall be notarized to that affect. ACCORD Forms are not acceptable nor forms signed by the broker, unless they have Power of Attorney to bind the insurance provider. Licensee shall maintain minimum limits of insurance no less than: 3 of 7 EXHIBIT "A" A) General Liability: $1,000,000.00 per occurrence and $2,000,000 aggregate for bodily injury, personal injury and property damage. Commercial General Liability Insurance or other form with a general aggregate limit shall apply separately to this project/location. B) Products/Completed Operations: $1,000,000.00 per occurrence and $2,000,000.00 aggregate. C) Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage. D) Employer's Liability: $1,000,000.00 per accident for bodily injury or illness. E) The Licensee's attention is directed to Section 7-4, "Worker's Compensation Insurance", of Standard Specifications for Public Works Construction, 2006 Edition, providing that the Licensee shall file a signed certification Certificate of Worker's Compensation Insurance before start of work under terms of this Agreement. 10. This license is personal to Licensee. It is nonassignable, except with prior written consent of the City, and any attempt to assign this license without consent will terminate the license privileges granted to Licensee under this Agreement. . The City will not unreasonably withhold consent. A reorganization of the Licensee's business entity form, or a transfer of not less than two-thirds of the assets of Licensee, shall not be deemed an assignment for the purposes of their license if the resulting or successor entity shall as a matter of law be liable for Licensee's accrued and future obligations under this Agreement. Licensee shall be entitled to transfer this license to a purchaser of at least 4 of 7 EXHIBIT "A" two thirds of Licensee's shopping center provided that the purchaser shall be bound by Licensee's accrued and future obligations under this License. 11. Licensee agrees that should any action, whether real or asserted, at law or in equity, arise out of the terms of this Agreement, or by Licensee's operations on the premises, venue for that action shall lie in San Bernardino County, California. 12. Licensee hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status, national origin or disability. Licensee's hiring practices and employee policies shall comply with applicable Federal, State and local laws. Such action shall include, but not be limited to, the following: Recruitment and recruitment advertising, employment, upgrading and promotion. 13. The prevailing party in any legal action to enforce or interpret any provision(s) of this Agreement shall be entitled to recover from the losing party all attorney's fees, court costs and necessary disbursements in connection with that action. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as attorney's fees for the purposes of this Agreement. 14. All official notices relative to this Agreement shall be in writing and addressed to the following representatives of Licensee and City: Licensee Citv Mr. John Kaufman, Manager Ms. Valerie C. Ross, Director JKS-Marshall Plaza, a Limited Development Services Department Liability Company City of San Bernardino 4727 Wilshire Boulevard, Suite 610 300 North"D" Street Los Angeles, CA 90010 San Bernardino, CA 92418 Ph. (323) 525-1515 Ph: (909) 384-5357 5 of 7 EXHIBIT "A" Fax. (323) 525-1616 Fax: (909) 384-5155 H H 6 of 7 EXHIBIT "A" LICENSE AND AGREEMENT for encroachment of an overhanging fagade and appurtenances in the right-of-way of a public Alley located south of Second Street and west of"G" Street. IN WITNESS, the parties have executed this Agreement on the day of , 2007. Fred Wilson, City Manager CITY OF SAN BERNARDINO ATTEST: JKS-MARSHALL PLAZA LLC, A Rachel Clark, City Clerk DELAWARE LIMITED LIABILITY COMPANY Licensee Approved as to form: John Kaufman, Manager James F. Penman City Attorney By H H 7 of 7 133d-LS „J„ A311V JNIISIX3 c� �LL w � a Cl U � a � w w� CO ° w o z9 � � y m � 0 C) LLJ W Q Z § I M w < _ — p F-- _ O ui O z LU u- w = Q = � QgQU Of < O .9� Q f= v ssb't sss'z �' ;> v dins TVLOc Kins Q z C; U w r J z� ° M ti r ED N i 19Z C JKS - Marshall Plaza, LLC ATTACHMENT «29' 707-815 West Second Street A Limited Liability Company San Bernardino, California 92410 April 25, 2007 Mr. Mike Grubbs CITY OF SAN BERNARDINO PUBLIC WORKS 300 N. "D" Street 3nd Floor San Bernardino, CA 92418 RE: Marshall Plaza 707 - 815 West 2"d Street Dear Mr. Grubb: This letter serves as our request for a permanent encroachment permit for the alley that commences on the west side of "G" Street and runs approximately 200 feet into our shopping center. The applicant is: JKS-Marshall Plaza LLC, a Delaware limited liability company 4727 Wilshire Boulevard, Suite 610 Los Angeles, CA 90010 (323) 525-1515 (323) 525-1616 (fax) I will be signing on behalf of the company in my capacity as manager. Enclosed herewith is the application fee in the amount of$625.00. Should you have any questions please do not hesitate to contact me at this office. With best regards/ . Jo Ka tin FQ M ager Aa P t Encl. iP�-7EtV7 ?`r+Ccs ()EN�4r1 i lv!.N. I 4727 Wilshire Boulevard, Suite 610 •Los Angeles, California 90010-3875 Teleplione 323.525.1515, Facsimile 323.525.1616 EXHIBIT "A" LICENSE AND AGREEMENT THIS LICENSE AND AGREEMENT is made and entered into this day of , 2007, by and between JKS-MARSHALL PLAZA LLC, A DELAWARE LIMITED LIABILITY COMPANY, hereinafter referred to as "Licensee," and the CITY OF SAN BERNARDINO, a municipal corporation hereafter referred to as "City." WITNESSETH: For and in consideration of the mutual promises and covenants herein contained, the parties hereto do hereby agree as follows: 1. City hereby gives pennission, removable and terminable as hereinafter provided, to Licensee for encroachment of an overhanging fagade and appurtenances in the right-of-way of a public alley located south of Second Street and west of"G" Street, indicated in Attachment "1", and in accordance with that letter dated April 25, 2007, from Licensee (Attachment "2"), both attached and made a part hereof, and subject to any requirements or conditions as may be imposed by the Director of Development Services of City. 2. This permission is given to Licensee as an accommodation to Licensee and shall be subject to the requirement that the Licensee maintain the entire 24-foot wide alley in a condition acceptable to the City Engineer. 3. Licensee hereby acknowledges the title and paramount interest of City to the public right-of-way and agrees never to assail or resist said title or interest and to observe present or future set-back requirements relating thereto while this agreement is in force and effect. 1 of 6 i EXHIBIT 4. City and Licensee each reserves the right to terminate this License and Agreement at any time for any reason by giving Licensee at least thirty (30} days written notice of such termination, except that City may, at its election, terminate said permission forthwith at any time if Licensee shall fail to comply with or abide by each and all of the provisions hereof or keep each and all of the Licensee's promises herein. Waiver by City of any breach of any term or provision hereof shall not be deemed a waiver of any subsequent breach of the same or any other term or provision hereof. 5. Licensee agrees to install, use and maintain said encroachment as required by this Agreement. Said encroachment shall be maintained at all times in a safe, neat, sightly and good physical condition. City shall be the sole judge of the quality of maintenance, and upon written notice by City, through its Director of Development Services, stating in general terms how and in what manner the maintenance is required, Licensee shall be required to perform such required maintenance. If Licensee fails to do so, then City shall have the right to perform this maintenance, the cost of which shall be borne by Licensee. Licensee further agrees to. install, use and maintain said encroachment in conformity with applicable Federal, State, and local laws, rules and regulations. Licensee shall at its own responsibility and expense obtain and keep in effect all licenses, bonds and permits necessary for the installation and existence of said encroachment. 6. Upon termination of this Agreement, Licensee agrees to immediately remove said encroachment from the public right-of-way and to restore the public right-of- way to the satisfaction of the Director of Development Services. If Licensee fails to exercise its duties under this paragraph, City shall have the right to remove said 2 of 6 EXHIBIT `•A" encroachment and to restore the premises at no .osi or liability to the City. Licensee covenants and agrees to reimburse City for such remoN ai and/or restoration. 7. City shall in no way be responsible for loss of or damage to said encroachment or for any property belonging to or leased by Licensee, its officers, servants, agents or employees, that may be stolen.. destroyed or in any way damaged during the installation, use or maintenance of said encroachment. 8. Licensee shall exercise its privileges under this license at its own risk. Licensee shall indemnify, defend and hold harmless City, its elective and appointive boards, commissions, officers, agents and employees from any costs, claims, damages, injuries, and liability resulting from, arising out of, or in any way connected with, the City's approval of this License and Agreement, the construction, installation, use and maintenance of said encroachment, the occupation or use of the public areas of such structure, both during and after the installation thereof, and including but not limited to any costs, claims, damages, injuries, and liability resulting from the conduct of Licensee or the employees, invitees, guests or agents of Licensee, or Licensee's failure to perform its promises in connection herewith. 9. The Licensee's attention is directed to Section 7-3, "Liability Insurance", of the Standard Specifications for Public Works Construction, 2006 Edition, providing that the Licensee shall furnish the City with policies or certificates of liability insurance prior to execution of the contract. All of the Insurance Policies shall name the City of San Bernardino as an additionally insured. The endorsement shall be provided by the agent of the insurance company and shall be notarized to that affect. ACCORD Forms are not acceptable nor forms signed by the broker, unless they have Power of Attorney to 3 of 6 EXHIBIT "A" ind the insurance provider. Licensee shall maintain minimum limits of insurance no less than: A) General Liability: $1,000,000.00 per occurrence and $2,000,000 aggregate for bodily injury, personal injury and property damage. Commercial I General Liability Insurance or other form with a general aggregate limit shall I apply separately to this project/location. B) Products/Completed Operations: $1,000,000.00 per occurrence and $2,000,000.00 aggregate. C) Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage. D) Employer's Liability: $1,000,000.00 per accident for bodily injury or illness. E) The Licensee's attention is directed to Section 7-4, "Worker's Compensation Insurance", of Standard Specifications for Public Works Construction, 2006 Edition, providing that the Licensee shall file a signed certification Certificate of Worker's Compensation Insurance before start of work under terms of this Agreement. F) The above-referenced Insurance Policies shall remain in effect during the entire term of this Agreement, and shall not be materially altered or canceled until after Licensee has provided thirty (30) days written notice to the City. 10. This license is personal to Licensee. It is nonassignable, except with prior written consent of the City, and any attempt to assign this license without consent will ® terminate the license privileges granted to Licensee under this Agreement. The City will not unreasonably withhold consent. A reorganization of the Licensee's business entity 4of6 EXHIBIT "A" form, or a transfer of not less than two-thirds of the assets of Licensee, shall not be deemed an assignment for the purposes of this license if the resulting or successor entity shall as a matter of law be liable for Licensee's accrued and future obligations under this Agreement. Licensee shall be entitled to transfer this license to a purchaser of at least two thirds of Licensee's shopping center provided that the purchaser shall be bound by Licensee's accrued and future obligations under this License. 11. Licensee agrees that should any action, whether real or asserted, at law or in equity, arise out of the terms of this Agreement, or by Licensee's operations on the premises, venue for that action shall lie in San Bernardino County, California. 12. Licensee hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status, national origin, disability, or any other category prohibited by law. Licensee's hiring practices and employee policies shall comply with applicable Federal, State and local laws. Such action shall include, but not be limited to, the following: recruitment and recruitment advertising. employment, upgrading and promotion. 13. The prevailing party in any legal action to enforce or interpret any provision(s) of this agreement shall be entitled to recover from the losing party all attorney's fees, court costs and necessary disbursements in connection with that action. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as attorney's fees for the purposes of this Agreement. 5 of 6 EXHIBIT "A" LICENSE AND AGREEMENT for encroachment of an overhanging fayade and appurtenances in the right-of-way of a public alley located south of Second Street and west of"G" Street. 14. All official notices relative to this Agreement shall be in writing and addressed to the following representatives of Licensee and City: Licensee City Mr. John Kaufman, Manager Ms. Valerie C. Ross, Director JKS-Marshall Plaza, a Limited Development Services Department Liability Company City of San Bernardino 4727 Wilshire Boulevard, Suite 610 300 North "D" Street Los Angeles, CA 90010 San Bernardino, CA 92418 Ph. (323) 525-1515 Ph: (909) 384-5357 Fax. (323) 525-1616 Fax: (909) 384-5155 IN WITNESS, the parties have executed this Agreement on the day of ) 2007. CITY OF SAN BERNARDINO JKS-MARSHALL PLAZA LLC, A DELAWARE LIMITED LIABILITY COMPANY Fred Wilson, City Manager John Kaufman, Manager ATTEST: Rachel Clark, City Clerk Approved as to form: James F. Penman City Attorney By 6 of 6 ell Cn 4- - ! 0 r— F'vl 0 IT A m SUIT 707A, (T S U F > 2,585 1,4V)' FD C/) =C 16 --f 0 > 0 2-1 oz � ipn E2 0 K > > C-) -U 7r' K Qm 0-n m f ;u D- M , 0 -u < 0 cn m 0 0 cn > cn c) m 241.611 EXISTING ALLEY "G" STREET JKS - Marshall Plaza, PLC ATTACHMENT 662" aavwm"'""_"" 707-815 West Second Street A Limited Liability Compami San Bernardino, California 92410 April 25, 2007 Mr. Mike Grubbs CITY OF SAN BERNARDINO PUBLIC WORKS 300 N. "D" Street 3nd Floor San Bernardino, CA 92418 RE: Marshall Plaza 707 - 815 West 2"d Street Dear Mr. Grubb: I i This letter serves as our request for a permanent encroachment permit for the alley that commences on the west side of "G" Street and runs approximately 200 feet into our shopping center. The applicant is: 'NNW JKS-Marshall Plaza LLC, a Delaware limited liability company 4727 Wilshire Boulevard, Suite 610 Los Angeles, CA 90010 (323) 525-1515 (323) 525-1616 (fax) I will be signing on behalf of the company in my capacity as manager. Enclosed herewith is the application fee in the amount of$625.00. Should you have any questions please do not hesitate to contact me at this office. With best regards, t Jo n Kaufmn M agert Encl. A 4 72 7 Wilshire Boulevard, Suite 610 •Los Angeles, California 90010-3875 Telephone 323.525.1515, Facsimile 323.525.1616