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HomeMy WebLinkAbout FULL PACKET_2017-02-07MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA JANUARY 17, 2017 CLOSED SESSION MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA 5:08 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor (5:13 p.m.) MICHELE MARTINEZ, Mayor Pro Tern P. DAVID BENAVIDES JOSE SOLORIO SAL TINAJERO JUAN VILLEGAS COUNCILMEMBERS Absent: VICENTE SARMIENTO STAFF Present: GERARDO MOUET, Acting City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS • Roberto Herrera, expressed support for City Manager Cavazos, opined that elected officials should also be evaluated. • Carlos Perea, opined that the City is going through Trumpism, concept of over - criminalizing actions; warn of danger in going down that path. • Sandra Ortega, supports City Manager Cavazos; since his appointment residents have been engaged and City transformed. • Sam Romero, opined that City Manager has done great job in the Downtown area; supports Police Chief's efforts in the Logan neighborhood. o Councilmember Benavides, asked City Attorney for clarification on claims of retaliation. o City Attorney Carvalho, noted that no claims filed thus official may participate; also, if an employee decides to waive rights in exchange for some type of consideration or resolution. o Councilmember Tinajero, noted for the record that councilmembers that were not able to participate in the last special city council meeting requested a continuance, but not extended courtesy. Highlighted achievements of City Manager Cavazos included passage of Transient Occupancy Tax, transparency efforts, amicable relationships CITY COUNCIL MINUTES 1 JANUARY 17, 2017 10A-1 amongst Downtown associations; Chamber of Commerce in support of City Manager and more affordable housing units. COUNCIL RECESSED to Room 147 for Closed Session discussion at 5:23 p.m. CLOSED SESSION ITEMS The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matters will prejudice the position of the City in existing and anticipated litigation: 1. CONFERENCE WITH LEGAL COUNSEL --EXISTING LITIGATION pursuant to Paragraph (1) of subdivision (d) of Section 54956.9 of the Government Code: • Richard Marckstadt v. City of Santa Ana; Workers' Compensation Appeals Board Case Nos. ADJ8904656; ADJ8904659 • Hank Couisine v. City of Santa Ana; Workers' Compensation Appeals Board Case No. ADJ8926744 2. LIABILITY CLAIMS pursuant to section 54956.95 of the Government Code: Claimant: William Galvez 3. CONFERENCE WITH LEGAL COUNSEL -- POTENTIAL LITIGATION Significant exposure to litigation pursuant to paragraph (2) or (3) of subdivision (d) of Section 54956.9 of the Government Code: (2 cases) 4. PUBLIC EMPLOYEE PERFORMANCE EVALUATION pursuant to Section 54957(b)(1) of the Government Code: Title: City Attorney and Clerk of the Council 5. PUBLIC EMPLOYEE EMPLOYMENT, EVALUATION OF PERFORMANCE, DISCIPLINE, OR DISMISSAL/RELEASE pursuant to Section 54957(b)(1) of the Government Code: Title: City Manager 6. PUBLIC EMPLOYEE APPOINTMENT pursuant to Section 54957(b)(1) of the Government Code: Title: Acting City Manager CITY COUNCIL MINUTES 2 JANUARY 17, 2017 10A-2 CLOSED SESSION REPORT - See Item 19A for any reportable actions. ADJOURNED THE CLOSED SESSION MEETING AT 7:11 P.M. AND CONVENED TO THE REGULAR OPEN MEETING. CITY COUNCIL MINUTES 10A-3 JANUARY 17, 2017 REGULAR OPEN MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 7:15 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor MICHELE MARTINEZ, Mayor Pro Tern P. DAVID BENAVIDES JOSE SOLORIO SAL TINAJERO JUAN VILLEGAS PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS COUNCILMEMBERS Absent: VICENTE SARMIENTO STAFF Present: GERARDO MOUET, Acting City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council MAYOR PULIDO DR. CURTIS SMITH, POLICE CHAPLAIN SPECIAL PRESENTATION - Update by Mexican Consul Mario Cuevas. EXCEPTIONAL CITIZEN AWARD presented by MAYOR PULIDO to Sandi Jackson for receiving the 2016 Philanthropist Award and her contributions to the City of Santa Ana. PROCLAMATION presented by MAYOR PRO TEM MARTINEZ to former Congresswoman Loretta Sanchez PROCLAIMING JANUARY 17, 2017 AS LORETTA SANCHEZ DAY for her 20 years of outstanding service and commitment to the residents of our community. CLOSED SESSION REPORT- See Item 19A for any reportable actions. CITY COUNCIL MINUTES 4 JANUARY 17, 2017 10A-4 PUBLIC COMMENTS Spoke in support of Agenda Item 11A: • Alexis Nava Teodoro, thanked the City Council and staff; encourage formation of task force with investigative subpoena power; thanked former Congresswoman Loretta Sanchez for efforts on immigration rights. • Salvador G. Sarmiento, resolution is direct message that Santa Ana stands behind their residents; incomplete until City terminates contract with Immigration and Custom Enforcement (ICE) Agency; appreciate the City's commitment, also, opposed to agreement for jail services with Tustin and Newport Beach on the agenda. • Carlos Perea, thanked Councilmember Benavides for championing efforts; strong message before Trump's inauguration; need to terminate the ICE contract. • Joese Hernandez, represent OCCORD, echoed sentiments expressed earlier; responsible development is affordable housing that will allow residents to thrive; rent control, access to open space and healthy food options also needed; opined that it was unfortunate that City Manager separated; look forward to working with Gerardo Mouet as Acting City Manager. • Adriana Chih, supports proposed oversight committee. • Silvia Hernandez, proud to be a Sanctuary City, need community task force; hold all accountable. • Rabbi Stephen Einstein, CLUE member, understand concept and applaud City Council for taking steps; City are leaders for other communities; all should be welcomed and protected. • Edna Monroy, thanked the City Council for listening to the community; City moving in the right direction; urged termination of ICE contract. • Ilya Tseglin, requested support for this son. • Robert Tseglin, supports brother and request assistance in protecting him. • Lisbeth Rivera, support transgender women in the Santa Ana Jail. • Ivan Enriquez, opined that ICE contract needs to come to an end; Santa Ana needs to advocate for health insurance. • Victor Payan, expressed strong support of Sanctuary City. • Elizabeth Martinez, school volunteer, supports task force comprised of community members. • Hermelindo Saldana, represents SACReD, thanked the City Council for supporting the Sanctuary City ordinance and task force; proud to be a Santa Ana resident. • Leonel Velazquez R., opposed to discrimination in any form; terminate ICE contract, supports the increase to the Request for Proposal amount and district based elections. • Roberto Herrera, spoke on 11A, 25B and 65E; support district elections. • Hugo Munoz, spoke of dignity and thanked all for championing cause; support ending contract with ICE; also supports community benefits agreement that is missing in the Heritage contract. • Hermelinda Echeverria, member of OCCOG and Restorative Justice, recounted recent deportation of her husband; thanked the City Council for Sanctuary City designation and hope others do not have to be separated. • Araceli Robles, Thank you for approving the sanctuary ordinance, concerned with changes to the housing ordinance (Agenda Item 11 D). • Rick Niedermayer, spoke on Agenda Item 19C, concerned that minimum threshold amount. CITY COUNCIL MINUTES 5 JANUARY 17, 2017 10A-5 AGENDA ITEMS CONSIDERED OUT OF ORDER - ORDINANCES/SECOND READING In the event a Councilmember recorded an "abstention" before consideration of the following ordinance(s) on first reading, such abstention will also be reflected in the minutes for second reading. 11A. ORDINANCE RELATING TO THE CITY'S PROCEDURES CONCERNING SENSITIVE INFORMATION AND THE ENFORCEMENT OF FEDERAL IMMIGRATION LAW FOLLOWING THE DECLARATION OF THE CITY OF SANTA ANA AS A SANCTUARY FOR ALL ITS RESIDENTS(STRATEGIC PLAN NO. 5, 6F) — Clerk of the Council Office Placed on first reading at the December 20, 2016 City Council meeting and approved by a vote of 7-0. Published in the Orange County Reporter on January 6, 2017 and January 13, 2017. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS-2908 - RELATING TO THE CITY'S PROCEDURES CONCERNING SENSITIVE INFORMATION AND THE ENFORCEMENT OF FEDERAL IMMIGRATION LAW FOLLOWING THE DECLARATION OF THE CITY OF SANTA ANA AS A SANCTUARY FOR ALL ITS RESIDENTS MOTION: Benavides SECOND: Solorio VOTE: AYES: Benavides, Martinez, Pulido, Solorio, Tinajero, Villegas (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Sarmiento(1) BOARDS / COMMISSIONS / COMMITTEES 13B. NOMINATED BY COUNCILMEMBER BENAVIDES AS THE WARD 4 REPRESENTATIVE TO THE BOARD OF RECREATION AND PARKS FOR A PARTIAL TERM EXPIRING 11, 2018 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Appoint Diana Lopez to the Board of Recreation and Parks (Ward 2 Resident; replacing E. Carranza). 13C. NOMINATED BY MAYOR PRO TEM MARTINEZ AS THE WARD 2 REPRESENTATIVE TO THE HISTORIC RESOURCES COMMISSION FOR A CITY COUNCIL MINUTES 6 JANUARY 17, 2017 10A-6 PARTIAL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Appoint Ginelle A. Hardy to the Historic Resources Commission (Ward 2 resident; replacing S. Coolidge). 13D. NOMINATED BY MAYOR PRO TEM MARTINEZ AS THE WARD 2 (REGULAR) REPRESENTATIVE TO THE YOUTH COMMISSION FOR A PARTIAL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Appoint Juan P. Plascencia to the Youth Commission (Ward 2 resident; replacing M. Ruiz). 13E. NOMINATED BY COUNCILMEMBER SARMIENTO AS THE WARD 1 REPRESENTATIVE TO THE BOARD OF RECREATION AND PARKS FOR A FULL TERM EXPIRING DECEMBER 15, 2020 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Appoint Humberto Sanchez to the Board of Recreation and Parks (Ward 3 resident; replacing K. Nguyen). 13F. NOMINATED BY COUNCILMEMBER SOLORIO AS THE WARD 3 REPRESENTATIVE TO THE ARTS AND CULTURE COMMISSION FOR A FULL TERM EXPIRING DECEMBER 15, 2020 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Appoint Rosa Garcia to the Arts and Culture Commission (Ward 4 Resident; replacing F. Gutierrez). 13G. NOMINATED BY COUNCILMEMBER SOLORIO AS THE WARD 3 REPRESENTATIVE (REGULAR) TO THE YOUTH COMMISSION FOR A FULL TERM EXPIRING DECEMBER 15, 2020 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Appoint Jennifer S. Barron to the Youth Commission (Ward 2 resident). 13H. NOMINATED BY COUNCILMEMBER SOLORIO AS THE WARD 3 REPRESENTATIVE TO THE PERSONNEL BOARD FOR A FULL TERM EXPIRING DECEMBER 15, 2020 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office CITY COUNCIL MINUTES 7 JANUARY 17, 2017 1OA-7 MOTION: Appoint Dennis Wootan to the Personnel Board (Ward 3 resident). 131. NOMINATED BY COUNCILMEMBER VILLEGAS AS THE WARD 5 REPRESENTATIVE (REGULAR) TO THE YOUTH COMMISSION FOR A FULL TERM EXPIRING DECEMBER 15, 2020 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Appoint Marlene Buitron to the Youth Commission (Ward 5 resident). 13J. NOMINATED BY COUNCILMEMBER VILLEGAS AS THE WARD 5 REPRESENTATIVE TO THE BOARD OF RECREATION AND PARKS FOR A FULL TERM EXPIRING DECEMBER 15, 2020 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Appoint Ofelia Velarde-Garcia to the Board of Recreation and Parks (Ward 1 resident, replacing B. Leal). 13K. NOMINATED BY MAYOR PULIDO AS THE CITY-WIDE REPRESENTATIVE TO THE COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION FOR A FULL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Re -appoint Monica O. Garcia to the Community Redevelopment and Housing Commission (Ward 2 resident). 13L. NOMINATED BY MAYOR PULIDO AS THE CITY-WIDE REPRESENTATIVE (REGULAR) TO THE YOUTH COMMISSION FOR A FULL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Re -appoint Roy Rodriguez to the Youth Commission (Ward 2 resident). 13M. NOMINATED BY MAYOR PULIDO AS THE CITY-WIDE REPRESENTATIVE TO THE ARTS AND CULTURE COMMISSION FOR A FULL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Re -appoint Don Cribb to the Arts and Culture Commission (Ward 3 resident). CITY COUNCIL MINUTES 8 JANUARY 17, 2017 10A-8 13N. NOMINATED BY MAYOR PULIDO AS THE CITY-WIDE REPRESENTATIVE TO THE ENVIRONMENTAL AND TRANSPORTATION ADVISORY COMMITTEE FOR A FULL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Re -appoint Thomas Morrissey to the Environmental and Transportation Advisory Committee (Ward 3 resident). 130. NOMINATED BY MAYOR PULIDO AS THE CITY-WIDE REPRESENTATIVE TO THE HISTORIC RESOURCES COMMISSION FOR A FULL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Re -appoint Phillip Schaefer to the Historic Resources Commission (Ward 3 resident). 13P. NOMINATED BY MAYOR PULIDO AS THE CITY-WIDE REPRESENTATIVE TO THE PERSONNEL BOARD FOR A FULL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Re -appoint Eugen C. Andres to the Personnel Board (Ward 3 resident). 13Q. NOMINATED BY MAYOR PULIDO AS THE CITY-WIDE REPRESENTATIVE TO THE PLANNING COMMISSION FOR A FULL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Re -appoint Mark S. McLoughlin to the Planning Commission (Ward 3 resident). 13R. NOMINATED BY MAYOR PULIDO AS THE CITY-WIDE REPRESENTATIVE TO THE BOARD OF RECREATION AND PARKS FOR A FULL TERM EXPIRING DECEMBER 11, 2018 (STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Re -appoint Wendy Tobiska to the Board of Recreation and Parks (Ward 5 resident). 13S. NOMINATED BY COUNCILMEMBER SARMIENTO AS THE WARD 1 REPRESENTATIVE (ALTERNATE) TO THE YOUTH COMMISSION FOR A FULL TERM EXPIRING DECEMBER 15, 2020 {STRATEGIC PLAN NO. 5, 11 - CITY COUNCIL MINUTES 9 JANUARY 17, 2017 10A-9 MOTION: Appoint Chloe I. Fausto to the Youth Commission (Ward 1 resident). 13T. NOMINATED BY COUNCILMEMBER TINAJERO AS THE WARD 6 REPRESENTATIVE TO THE ARTS AND CULTURE COMMISSION FOR A PARTIAL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION; Re -appoint Sandra "Pocha" Pena to the Arts and Culture Commission (Ward 2 resident). 13U. NOMINATED BY COUNCILMEMBER TINAJERO AS THE WARD 6 REPRESENTATIVE TO THE PLANNING COMMISSION FOR A PARTIAL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office MOTION: Re -appoint Beatriz Mendoza to the Planning Commission (Ward 2 resident). 13V. NOMINATED BY COUNCILMEMBER TINAJERO AS THE WARD 6 REPRESENTATIVE TO THE PERSONNEL BOARD FOR A PARTIAL TERM EXPIRING DECEMBER 11, 2018 (STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Re -appoint Maricela Vallejo to the Personnel Board (Ward 6 resident). 13W. NOMINATED BY COUNCILMEMBER TINAJERO AS THE WARD 6 REPRESENTATIVE (REGULAR) TO THE YOUTH COMMISSION FOR A PARTIAL TERM EXPIRING DECEMBER 11, 2018 {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Re -appoint Tabatha N. Reyes to the Youth Commission (Ward 6 resident). MOTION: Tinajero VOTE: AYES: NOES: ABSTAIN ABSENT: SECOND: Solorio Benavides, Martinez, Pulido, Solorio, Tinajero, Villegas (6) None (0) None (0) Sarmiento (1) CITY COUNCIL MINUTES 10 JANUARY 17, 2017 10A-10 ADMINISTER OATH OF OFFICE TO NEWLY APPOINTED COMMISSIONERS: Arts and Culture Commissioner Rosa Garcia, and Sandra "Pocha" Pena Board of Recreation and Parks Diana Lopez, Humberto Sanchez, and Ofelia Velarde-Garcia Community Redevelopment and Housing Commission Monica O. Garcia Environmental and Transportation Advisory Committee Thomas Morrissey Historic Resources Commission Ginelle A. Hardy, and Phillip Schaefer Personnel Board Eugen C. Andres Maricela Vallejo Dennis Wootan Planning Commission Mark S. McLoughlin, and Beatriz Mendoza, Youth Commission Jennifer S. Barron (Regular Member), Marlene Buitron (Regular Member), Chloe Fausto (Alternate Member), Juan P. Plascencia (Regular Member), Tabatha N. Reyes (Regular Member), and Roy Rodriguez (Regular Member) CONSENT CALENDAR ITEMS MOTION: Approve staff recommendations on Consent Calendar Items 10A through 251, with the following modifications: • Councilmember Martinez pulled the following items for separate action: 20B, 25B, 25F and dissented on Agenda Item 11 D; and • Excused absence for Councilmember Sarmiento. MOTION: Martinez SECOND: Solorio VOTE: AYES: Benavides, Martinez, Pulido, Solorio, Tinajero, Villegas (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Sarmiento (1) CITY COUNCIL MINUTES 11 JANUARY 17, 2017 10A-11 Items removed for separate action or modified are highlighted. Separate actions show the actual vote. Items without votes are adopted as part of the consent motion. ADMINISTRATIVE MATTERS MINUTES 10A. MINUTES FROM THE REGULAR MEETING OF DECEMBER 20, 2016 {STRATEGIC PLAN NO. 5, 11 — Clerk of the Council Office MOTION: Approve Minutes. 10B. MINUTES FROM THE SPECIAL CLOSED SESSION MEETING OF DECEMBER 28, 2016 {STRATEGIC PLAN NO. 5, 1) — Clerk of the Council Office MOTION: Approve Minutes. ORDINANCES/SECOND READING In the event a Councilmember recorded an "abstention" before consideration of the following ordinance(s) on first reading, such abstention will also be reflected in the minutes for second reading. 11A. AGENDA ITEM CONSIDERED OUT OF ORDER IIB. ORDINANCE TO COMPLY WITH NEW STATE LAW (PROP 64) TO PERMIT INDOOR CULTIVATION OF MARIJUANA FOR PERSONAL USE TO NO MORE THAN SIX (6) LIVING MARIJUANA PLANTS WITHIN A PRIVATE RESIDENCE; PROHIBIT COMMERCIAL AND OUTDOOR MARIJUANA CULTIVATION {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office Placed on first reading at the December 20, 2016 City Council meeting and approved by a vote of 6-1 (Pulido dissented). Published in the Orange County Reporter on January 6, 2017. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS-2909 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO COMPLY WITH NEW STATE LAW (PROP 64) TO PERMIT INDOOR CULTIVATION OF MARIJUANA FOR PERSONAL USE TO NO MORE THAN SIX (6) LIVING MARIJUANA PLANTS WITHIN A PRIVATE RESIDENCE; PROHIBIT COMMERCIAL AND OUTDOOR MARIJUANA CULTIVATION VOTE: AYES: Benavides, Martinez, Solorio, Tinajero, Villegas (5) CITY COUNCIL MINUTES 12 JANUARY 17, 2017 10A-12 NOES: Pulido (1) ABSTAIN: None (0) ABSENT: Sarmiento(1) 11C. ORDINANCE AMENDING CHAPTER 33, ARTICLE VII, OF THE SANTA ANA MUNICIPAL CODE RELATING TO THE ROLE AND DUTIES OF THE ENVIRONMENTAL AND TRANSPORTATION ADVISORY COMMITTEE {STRATEGIC PLAN NO.5, 1) - Clerk of the Council Office Placed on first reading at the December 20, 2016 City Council meeting and approved by a vote of 6-0 (Tinajero absent). Published in the Orange County Reporter on January 6, 2017. MOTION: Place revised ordinance on second reading and adopt. ORDINANCE NO. NS-2910 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 33, ARTICLE VII OF THE SANTA ANA MUNICIPAL CODE RELATING TO THE ROLE AND DUTIES OF THE ENVIRONMENTAL AND TRANSPORTATION ADVISORY COMMITTEE 11D. FIRST AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2015-03 FOR THE HERITAGE VILLAGE MIXED -USE DEVELOPMENT AT 2001 EAST DYER ROAD {STRATEGIC PLAN NO. 5, 11 - Clerk of the Council Office Placed on first reading at the December 20, 2016 City Council meeting and approved by a vote of 6-1 (Martinez dissented). Published in the Orange County Reporter on January 6, 2017. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS-2911 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND HERITAGE VILLAGE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VOTE: AYES: Benavides, Pulido, Solorio, Tinajero, Villegas (5) NOES: Martinez (1) ABSTAIN: None (0) CITY COUNCIL MINUTES 13 JANUARY 17, 2017 10A-13 ABSENT: Sarmiento(1) BOARDS / COMMISSIONS / COMMITTEES 13A. COUNCIL COMMITTEES —AGENDA AND MINUTES {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office MOTION: Receive and file. NAME MEETING DATE Legislative Committee (Cancellation) 12/28/2016 Finance, Economic Dev. & Tech. Committee (Cancellation) 1/9/2017 FINAL TRACT MAP NOTIFICATIONS Pursuant to Section 34-183 of the Santa Ana Municipal Code, the City Engineer has received this Final Map and is in the process of reviewing the map for final approval. The City Engineer shall approve or disapprove this map within 10 days of the City Council Meeting. 17A. CERTIFICATION AND APPROVAL BY CITY ENGINEER — FINAL PARCEL MAP NO. 2013-170 (923 NORTH SANTIAGO STREET) {STRATEGIC PLAN NO. 3, 2) - Public Works Agency MOTION: Receive and file. MISCELLANEOUS ADMINISTRATION 19A. CONFIRMATION OF CLOSED SESSION ACTION(S) — City Attorney's Office MOTION: Approve as follow: AGMT NO. 2017-013 - LIABILITY CLAIM pursuant to section 54956.95 of the Government Code: Claimant: William Galvez; Settlement Agreement in the mount of $50,000 approved by 6-0 vote (Sarmiento absent). • PUBLIC EMPLOYEE APPOINTMENT pursuant to Section 54957(b)(1) of the Government Code: Title: Acting City Manager; Appointed Gerardo Mouet as Acting City Manager aproved by 6-0 vote (Sarmiento absent). AGMT NO. 2017-001 — PUBLIC EMPLOYEE EMPLOYMENT, EVALUATION OF PERFORMANCE, DISCIPLINE, OR DISMISSAL/RELEASE pursuant to Section 54957(b)(1) of the Government Code: City Manager. City Attorney Carvalho reported that City Manager David Cavazos and City Council have agreed to a separation agreement; employment agreement provided that he was an At -Will employee subject to termination without cause; Separation Agreement approved on amicable CITY COUNCIL MINUTES 14 JANUARY 17, 2017 1 OA-14 terms; Mr. Cavazos will be provided with severance consistent with the terms in his employment agreement. Motion to approve Separation Agreement carried by a 4-2 vote, (Benavides and Tinajero dissented and Sarmiento absent). 19B. EXCUSED ABSENCES — Clerk of the Council Office MOTION, Excuse the absence of Councilmember Sarmiento from said meeting. 19C. NONPROFIT COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) APPLICATION PROCESS FOR FISCAL YEAR 2017-2018 {STRATEGIC PLAN NO. 5, 4) - Community Development Agency MOTION: Continue consideration of matter to the February 7, 2017 City Council Meeting, at the request of staff. 19D. COMPREHENSIVE ANNUAL FINANCIAL REPORT FOR THE FISCAL YEAR - ENDED JUNE 30, 2016 (STRATEGIC PLAN NO. 4, 1) - Finance and Management Services Matter continued from the December 20, 2016 City Council meeting by a vote of 7-0. MOTION: Continue consideration of matter to the February 7, 2017 City Council Meeting, at the request of staff. 19E. STRATEGIC PLAN MONTHLY REPORT FOR DECEMBER 2016 {STRATEGIC PLAN NO. 5, 1) - City Manager's Office MOTION: Receive and file. 19F. PUBLIC WORKS AGENCY STATUS OF PROJECTS - MONTHLY CAPITAL IMPROVEMENT PROGRAM EXECUTIVE REPORT FOR DECEMBER 2016 (STRATEGIC PLAN NO. 5, 1) - Public Works Agency MOTION: Receive and file. 19G. WATER AND SEWER PROJECTS AND CAPITAL IMPROVMENTS STATUS DURING THE PERIOD OF MARCH 1, 2015 THROUGH NOVEMBER 30, 2016 {STRATEGIC PLAN NO. 6, 1 G) - Public Works Agency MOTION: Receive and file. CITY COUNCIL MINUTES 15 JANUARY 17, 2017 10A-15 BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A. WORKFORCE INNOVATION AND OPPORTUNITY ACT RAPID RESPONSE FUNDS FOR PROGRAM YEAR 2016-2017 (STRATEGIC PLAN NO. 2, 4) - Community Development Agency MOTION: Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2017-077- Recognizing additional Workforce Innovation and Opportunity Act Rapid Response grant funds in the amount of $240,869 in revenue account and appropriating same to Rapid Response expenditure account. 20B. AUTHORIZE PAYMENT TO THE COUNTY OF ORANGE FOR NEW ANIMAL SHELTER CONSTRUCTION (STRATEGIC PLAN GOAL NO. 1, 5) - Police Department Mayor Pro Tern Martinez, expressed concern with entering into agreements without funds appropriated and now surplus funds being considered. Finance and Management Services Executive Director Fran Gutierrez, indicated that matter approved by the City Council in April of 2016 and included provision that funds would be from fund balance and subsequent amounts would be included in budget; difference in surplus is current year operating amounts and fund balance is prior year encumbrances and releasing funds for other projects. Mayor Pro Tern Martinez, noted that some cities have dropped out and now Santa Ana has to pick up larger share for construction of new facility. Mayor Pulido, asked if other alternatives council be considered. Acting City Manager Mouet, noted that City would be delinquent if not paid by January 30th, City paying with fund balance and not surplus funds. F, MOT0i11M 1. Approve an increase to the contract amount of the Participation Agreement approved by the County of Orange and the City of Santa Ana, increasing the amount by $727,768 for a new total contract amount of $7,869,145 (principal and interest). 2. Approve an appropriation adjustment. (Requires five affirmative votes) CITY COUNCIL MINUTES 16 JANUARY 17, 2017 10A-16 APPROPRIATION ADJUSTMENT NO. 2017-078 - Appropriating $750,000 from fund balance (Fiscal Year 2015-16 General Fund), to pay for the first year payment of the County of Orange construction of the Animal Shelter. 3. Authorize payment of the term commencing July 1, 2016 through June 30, 2017 of principal and interest to the County of Orange for the City's share of the construction of the new animal shelter facility in the amount of $814,454.26. 4. Direct staff to request the County of Orange for an amended Participation Agreement that details the new terms and conditions resulting from the increased costs associated with the construction of the County Animal Shelter. MOTION: Benavides SECOND: Tinajero VOTE: AYES: Benavides, Pulido, Solorio, Tinajero, Villegas (5) NOES: Martinez (1) ABSTAIN: None (0) ABSENT: Sarmiento(1) SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES 22A. SPEC. NO. 16-142 - PURCHASE OF 44 SPECIAL WEAPONS AND TACTICS TEAM (SWAT) SWAT RIFLES AND ACCESSORIES (STRATEGIC PLAN NO. 1, 5) (Police Department) - Finance and Management Services MOTION: Authorize a one-time purchase and payment of purchase order to Adamson Police Products in the amount of $107,930, subject to non - substantive changes approved by the City Manager and City Attorney. PROJECTS/CHANGE ORDERS 23A. AWARD CONTRACT FOR CONSTRUCTION OF WARNER AVENUE AND FIRST STREET PAVEMENT MAINTENANCE PROJECT (PROJECT NOS. 15- 6840 & 16-6858) {STRATEGIC PLAN NO. 6, 16; 1C; 1G) — Public Works Agency MOTION: 1. Authorize the City Manager and Clerk of the Council to award and execute a construction contract to All American Asphalt, the lowest CITY COUNCIL MINUTES 17 JANUARY 17, 2017 10A-17 responsible bidder, in accordance with the bid in the amount of $2,588,698, for the term beginning upon execution of the contract and ending upon project completion, for construction of the Warner Avenue Pavement Maintenance and the First Street Pavement Maintenance projects, subject to non -substantive changes approved by the City Manager and the City Attorney. 2. Approve the Project Cost Analysis for a total estimated construction delivery cost of $3,500,000, which includes the contract base amount, administration, inspection, testing, and a contingency of $522,998. AGREEMENTS 25A. SPECIALIZED ENGINEERING SOFTWARE MAINTENANCE AND TECHNICAL SUPPORT {STRATEGIC PLAN NO. 6, 1 G) - Public Works Agency ihi[0y9Ca7►�A 1. AGMT NO. 2017-002 - Authorize the City Manager and the Clerk of the Council to execute an agreement with Bentley Systems, Inc. for software maintenance and technical support for the specialized engineering software used in the Public Works Agency, in an amount not to exceed $55,000 per year, for a one-year subscription period beginning January 17, 2017, and ending January 16, 2018, with the option to extend for up to four additional one-year terms, exercisable by the City Manager or his designated representative, subject to non - substantive changes approved by the City Manager and City Attorney. 2. AGMT NO. 2017-003 - Authorize the City Manager and the Clerk of the Council to execute a concurrent amendment to the agreement with Bentley Systems, Inc. that identifies mutually accepted changes to the agreement, subject to non -substantive changes approved by the City Manager and City Attorney. 25B. PROVIDE BOOKING SERVICES TO THE CITY OF TUSTIN AND THE CITY OF NEWPORT BEACH FOR CITABLE OFFENDERS {STRATEGIC PLAN NO. 1, 4A) - Police Department Mayor Pro Tern Martinez, opposed to operating jail, thus not support entering into agreement with other municipalities. Police Chief Rojas, noted that City has had agreement with City of Tustin since 2004 and Newport Beach requested consideration; contract is mainly for arrest for drunk driving violations. CITY COUNCIL MINUTES 18 JANUARY 17, 2017 10A-18 Councilmember Solorio, noted that Request for Proposal has been released and responses due at the end of the month; suggested continuance for 30 days to evaluation proposals. Mayor Pulido, asked if contract was to be terminated if it could be terminated with 30 day notice. City Attorney Carvalho, indicated that termination clause in the contract. Councilmember Tinajero, concerned with continuing to offer jail services. Councilmember Villegas, supports contract with knowledge that termination clause included. MOTION: 1. Authorize the City Manager and the Clerk of the Council to execute a three-year agreement with the City of Tustin to provide jail services for the period of January 11, 2017 through January 10, 2020, in the amount of $146 per prisoner, subject to non -substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager and the Clerk of the Council to execute a three-year agreement with the City of Newport Beach to provide jail services for the period of January 17, 2017 through January 16, 2020, in the amount of $146 per prisoner, subject to non -substantive changes approved by the City Manager and City Attorney. MOTION: Pulido VOTE: AYES: NOES: ABSTAIN ABSENT: *Motion failed 3-3. SECOND: Solorio Pulido, Solorio, Villegas (3) Benavides, Martinez, Tinajero (3) None (0) Sarmiento (1) CITY COUNCIL MINUTES 19 JANUARY 17, 2017 10A-19 25C. VOLUME LICENSING AND MAINTENANCE FOR MICROSOFT SOFTWARE AND PRODUCTS (STRATEGIC PLAN NO. 7, 2D) - Information Technology Department MOTION: 1. AGMT NO. 2017-004 - Approve and authorize the City Manager and Clerk of the Council to execute the attached option to renew large account reseller agreement with SoftwareONE, Inc. in an annual amount not to exceed $500,000 for an additional three-year period, beginning February 1, 2017 through January 31, 2020, subject to non - substantive changes and approved by the City Manager and City Attorney. 2. AGMT NO. 2017-005 - Authorize the City Manager and Clerk of the Council to execute the attached Microsoft Enterprise Enrollment Agreement for volume licensing and maintenance, subject to non - substantive changes approved by the City Manager and City Attorney. 25D. AGMT NO. 2017-006 - LANDSCAPE SERVICES FOR DISTRICT 2 AND DISTRICT 3 (PARKS AND FACILITIES)(STRATEGIC PLAN NO. 6, 1B) - Parks, Recreation and Community Services Agency; and Community Development Agency MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with DMS Facility Services to provide landscape maintenance services in District 2 in an annual amount not to exceed $327,972, and in District 3 in an annual amount not to exceed $437,250, for a total annual of $765,222, which includes a 10% contingency, for a term from February 1, 2017 through January 31, 2019, with two, one-year renewal options, subject to non -substantive changes approved by the City Manager and City Attorney. 25E. INFIELD MAINTENANCE SERVICES FOR DISCTRICT 3 AND DISTRICT 2 (CITY PARKS) {STRATEGIC PLAN NO. 6, 16} Parks, Recreation and Community Services Agency MOTION: 1. AGMT NO. 2017-007 - Authorize the City Manager and Clerk of the Council to execute an agreement with Major League Infields, Inc. to provide infield maintenance services in District 3 in an annual amount not to exceed $68,303, which includes a 10 percent contingency, for a term from February 1, 2017 through January 31, 2019, with two, one- year renewal options, subject to non -substantive changes approved by the City Manager and City Attorney. CITY COUNCIL MINUTES 20 JANUARY 17, 2017 1 OA-20 2. AGMT NO. 2017-008 - Authorize the City Manager and Clerk of the Council to execute an agreement with Professional Sports Field Maintenance, Inc. to provide infield maintenance services in District 2 in an annual amount not to exceed $37,939, which includes a 10% contingency, for a term from February 1, 2017 through January 31, 2019, with two, one-year renewal options, subject to non -substantive changes approved by the City Manager and City Attorney. 25F. AGMT NO. 2017-009 - APPROVE TENANT- INTEREST PURCHASE AGREEMENT FOR BRISTOL STREET IMPROVEMENTS, PHASE 3A (PROJECT NO. 136792 NONGENERAL FUND) {STRATEGIC PLAN NOS. 6, 1 G; 3, 2C) - Public Works Agency MOTION: Authorize the City Manager and Clerk of the Council to execute purchase agreement of Tenant Interest with George De Anda in the property known as Taqueria De Anda in an amount of $220,465 for the property located at 1221 North Bristol Street and 1240 West Washington Avenue (APN Nos. 405-274-12, -13) and goodwill (if any), subject to non - substantive changes approved by the City Manager and City Attorney. MOTION: Benavides SECOND: Tinajero VOTE: AYES: Benavides, Pulido, Solorio, Tinajero, Villegas (5) NOES: Martinez (1) ABSTAIN: None (0) ABSENT: Sarmiento(1) 25G. AGMT NO. 2017-010 - PRINTING SERVICES OF THE QUARTERLY RECREATION BROCHURE {STRATEGIC PLAN NO. 5, 6C) - Parks, Recreation and Community Services Agency MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with Advantage Mailing to provide printing services of the quarterly recreation brochure in an annual amount not to exceed $25,000, for a term from January 17, 2017 through February 16, 2019, with two, one- year renewal options, subject to non -substantive changes approved by the City Manager and City Attorney. 25H. AGMT NO. 2017-011 - PROVIDE A LUNCHTIME TROLLEY SERVICE IN DOWNTOWN SANTA ANA {STRATEGIC PLAN NO. 3, 4F) - Community Development Agency CITY COUNCIL MINUTES 21 JANUARY 17, 2017 1 OA-21 MOTION: Authorize the City Manager and the Clerk of the Council to execute an agreement with Dulac Enterprises (DBA Big Red Bus) in an amount not to exceed $93,600, for a term beginning January 24, 2017 through January 26, 2018, subject to non -substantive changes approved by the City Manager and City Attorney. 251. AGMT NO. 2017-012 - REAL PROPERTY APPRAISAL SERVICES (STRATEGIC PLAN NO. 3, 5A) - Community Development Agency MOTION: Authorize the City Manager and the Clerk of the Council to execute an agreement with Lidgard and Associates, Inc. for a three year period from January 17, 2017 through January 16, 2020 in a total amount not to exceed $30,000, subject to non -substantive changes approved by the City Manager and City Attorney. **END OF CONSENT CALENDAR** BUSINESS CALENDAR ITEMS RESOLUTIONS 55A. FISCAL YEAR 2017 HOMELAND SECURITY GRANT PROGRAM FUNDING {STRATEGIC PLAN NO. 1, 2,6) - Police Department MOTION: 1. Adopt a resolution. RESOLUTION NO. 2017-001 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER AND THE CHIEF OF POLICE OR THEIR DESIGNEE(S) TO ENTER INTO AN AGREEMENT WITH THE STATE OF CALIFORNIA GOVERNOR'S OFFICE OF EMERGENCY SERVICES FOR THE FY 2017 URBAN AREA SECURITY INITIATIVE FUNDING PROGRAM 2. Direct the City Attorney to prepare and authorize the Chief of Police and the Clerk of the Council to enter into reimbursement agreements for equipment, services, or training with the County of Orange or any of the cities located in the designated Anaheim/Santa Ana Urban Area. Reimbursement agreements will not be prepared until the award amount is received from Cal OES. MOTION: Martinez SECOND: Benavides CITY COUNCIL MINUTES 22 JANUARY 17, 2017 1 OA-22 VOTE: AYES: Benavides, Martinez, Villegas (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Sarmiento(1) Pulido, Solorio, Tinajero, 55B. APPROVE WATER SUPPLY ASSESSMENT FOR THE COUNTY OF ORANGE CIVIC CENTER FACILITIES STRATEGIC PLAN {STRATEGIC PLAN NO. 3, 3 AND 5, 2) - Public Works Agency MOTION: Adopt a resolution. RESOLUTION NO. 2017-002 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE WATER SUPPLY ASSESSMENT FOR THE COUNTY OF ORANGE CIVIC CENTER FACILITIES STRATEGIC PLAN MOTION: Benavides SECOND: Tinajero VOTE: AYES: Benavides, Martinez, Pulido, Solorio, Tinajero, Villegas (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Sarmiento(1) REPORTS 65A. ANNUAL REVIEW AND APPOINTMENT OF REGIONAL BOARD REPRESENTATIVES {STRATEGIC PLAN NO. 5, 1) - Clerk of the Council Office Matter continued from the December 20, 2016 City Council meeting to the January 17, 2017 City Council meeting by a vote of 7-0. MOTION: Continue matter to the February 7, 2017 City Council Meeting. MOTION: Pulido SECOND: Martinez VOTE: AYES: Benavides, Martinez, Pulido, Solorio, Tinajero, Villegas (6) CITY COUNCIL MINUTES 23 JANUARY 17, 2017 1 OA-23 NOES: None (0) ABSTAIN: None (0) ABSENT: Sarmiento(1) 65B. ANNUAL REVIEW OF COUNCIL COMMITTEES AND APPOINTEES {STRATEGIC PLAN NO. 5, 11 — Clerk of the Council Office MOTION: Continue matter to the February 7, 2017 City Council Meeting. MOTION: Pulido VOTE: AYES: NOES: ABSTAIN ABSENT: SECOND: Martinez Benavides, Martinez, Villegas (6) None (0) None (0) Sarmiento (1) Pulido, Solorio, Tinajero, 65C. CONTINUE ITEM: COMMUNITY ENHANCEMENT PROGRAM GRANT AGREEMENTS AND APPROPRIATION ADJUSTMENT FOR FISCAL YEAR 2016-2017 {STRATEGIC PLAN NOS. 2,2A; 2,213; 5,413; 5,5C; 5,6C } - City Manager's Office and Community Development Agency Consideration of matter continued from the December 20, 2016 City Council meeting to the January 17, 2017 City Council meeting by a vote of 6-0 (Benavides abstained). MOTION: Continue matter to the February 7, 2017 City Council Meeting at the request of staff. MOTION: Martinez SECOND: Tinajero VOTE: AYES: Martinez, Pulido, Solorio, Tinajero, Villegas (5) NOES: None (0) ABSTAIN: Benavides (1) ABSENT: Sarmiento (1) CITY COUNCIL MINUTES 24 JANUARY 17, 2017 1 OA-24 65D. CONTINUE ITEM: ADOPT THE FISCAL YEAR 2015-16 SURPLUS ALLOCATION PLAN AND APPROVE APPROPRIATION ADJUSTMENT {STRATEGIC PLAN NOS. 1, 1; 2, 1, 2) - Finance and Management Services Consideration of matter continued from the December 20, 2016 City Council meeting to a future City City Council meeting by a vote of 6-1 (Tinajero dissented). MOTION: Continue matter to the February 21, 2017 City Council Meeting at the request of staff. MOTION: Martinez SECOND: Tinajero VOTE: AYES: Benavides, Martinez, Pulido, Solorio, Tinajero, Villegas (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Sarmiento(1) 65E. EVALUATION OF OPTIONS CONCERNING POTENTIAL TRANSITION TO A BY -DISTRICT ELECTIONS SYSTEM {STRATEGIC PLAN NO. 5, 11 - City Attorney's Office Matter continued from the December 20, 2016 City Council meeting to the January 17, 2017 City Council meeting by a vote of 7-0. • Alex Vega, spoke in opposition to direct district elections. • Sandra Ortega, supports district elections; all neighborhoods and resources must be represented, important to know the needs of the area. Councilmember Tinajero, proposed amendment to the Charter to increase 30 day residency to one year; follow spirit of the law; need definition of residency; also, propose 7 councilmember wards with the Mayor elected amongst councilmembers, will stifle special interest and allow neighborhoods to mobilize; support Ward elections. Councilmember Benavides, supports integrity to the election process and elected member to represent the area; motion to direct staff to prepare language for City Council consideration. Mayor Pro Tern Martinez, supports a full-time elected Mayor and City Council; remove campaign contribution as part of reform and have the City pay for elections. CITY COUNCIL MINUTES 25 JANUARY 17, 2017 1 OA-25 Councilmember Villegas, acknowledge that being an elected official is a lot of work; direct ward elections would take away rights of all City residents to elect their representatives. Councilmember Tinajero, opined that candidates should be living in the Ward for at least a year; possibility for reform and consider Los Angeles model; strengthen the residency requirement; supports Mayor Pro Tern Martinez option for campaign reform; voters to decide if they would like full-time or part-time representatives; need to be inclusive and allow all to have opportunity to run for office; motion to direct staff to prepare documents to place on the ballot - change minimum residency requirement and campaign reform; option for full- time or part-time elected officials; and create task force to decide whether mayor is directly elected or not; seconded by Councilmember Benavides. Councilmember Solorio, open to discussing some areas and Charter in general; support placing on the ballot in November of 2018 and not as part of a special election; should not extend the term of any current member; residency requirement is defined in case law; special election may be cost prohibitive. Indicated that he has been transparent about his residency; concerned that surplus budget may have been due to unfilled vacancies; need to get finances in order in addition to using enterprise funds to fund other operations. Also, noted that unions have traditionally endorsed candidates, now fewer unions involved. Mayor Pulido, suggest that Charter Amendments should be placed on 2018 general election ballot; opined that City is fortunate that we don't have district election — need to focus on interest of the entire City; voters decide who should represent City, but City represented by officials that live in all areas; dissented on proposed motion. Mayor Pro Tern Martinez, noted that several changes were proposed in the past such as reform of Personnel Board, in addition to term limits; supports matter placed on the 2018 General Election to reduce cost. Also, staff should consider vacant funded positions be consolidated into one account that all departments can tap into account; noted that retirement of long term employees not funded; matters should be discussed and considered since planning is time consuming. City Attorney Carvalho, noted that any Charter Amendments need to be approved by the City Council no later than 88 days before Election Day. Councilmember Tinajero, stated for the record that elected officials that are termed out would not benefit from term extensions; community needs to decide or residents may consider initiative process. MOTION: Direct staff to place on the ballots following charter amendments - increase minimum residency requirement, campaign reform, option to have full-time or part-time elected officials and task force to review option to have directly elected Mayor. MOTION: Tinajero SECOND: Benavides CITY COUNCIL MINUTES 26 JANUARY 17, 2017 1 OA-26 VOTE: AYES: NOES: ABSTAIN ABSENT: *Motion failed 2-4. PUBLIC HEARING Benavides, Tinajero (2) Martinez, Pulido, Solorio, Villegas (4) None (0) Sarmiento (1) 75A. PUBLIC HEARING FOR THE ISSUANCE OF OBLIGATIONS BY THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY FOR THE BENEFIT OF ORANGE COUNTY BAR FOUNDATION; TAX EQUITY AND FINANCIAL RESPONSIBILITY ACT (TEFRA) (STRATEGIC PLAN NO. 2, 4) - Community Development Agency Legal Notice published in the Orange County Reporter on December 23, 2016. MOTION: 1. Conduct a Tax Equity and Financial Responsibility Act hearing in consideration of issuance of tax-exempt obligations by the California Enterprise Development Authority for the purpose of financing facilities located in Santa Ana, California for the benefit of Orange County Bar Foundation, Inc; and 2. Adopt a resolution. RESOLUTION NO. 2017-003 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE ISSUANCE OF TAX- EXEMPT OBLIGATIONS BY THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $2,000,000 TO FINANCE FACILITIES FOR THE BENEFIT OF THE ORANGE COUNTY BAR FOUNDATION, INC. MOTION: Villegas VOTE: AYES: NOES: ABSTAIN ABSENT: SECOND: Martinez Benavides, Martinez, Pulido, Solorio, Tinajero, Villegas (6) None (0) None (0) Sarmiento (1) CITY COUNCIL MINUTES 27 JANUARY 17, 2017 1 OA-27 RECESSED THE CITY COUNCIL MEETING AT 9:46 P.M. TO THE SPECIAL HOUSING AUTHORITY MEETING AND RECONVENED THE CITY COUNCIL MEETING AT 9:47 P.M. WITH SAME MEMBERS PRESENT. COMMENTS PUBLIC COMMENTS • Alex Vega, congratulated newly elected councilmembers. • Michael Klubinikin, noted that County of Orange has merged all comments to the beginning of the meeting and further limit speakers. • Ilya Tseglin, concerned with court system and services provided by Orange County Regional Center. • Robert Tseglin, spoke of abuse suffered by his brother in care of the State. 90A. CITY MANAGER'S COMMENTS • Acting City Manager Mouet, thanked the City Council for appointment and family for support; pledged to work with all elected officials and the residents of our community. 90B. CITY COUNCILMEMBER COMMENTS Councilmember Tinajero: • Wished all a Happy New Year; and • Look forward to engaging community on economic development efforts and partnership with the school district including arts program and IB program at Saddleback High School; City should establish internship program for young residents to learn about opportunities in local government. Councilmember Solorio: • Congratulated Acting City Manager on appointment; thankful for taking on responsibility; • Requested report to the City Council on police department recruitment efforts due to increased number of shooting; need to fill as soon as possible; • Concerned with upcoming budget; suggest a planning session or work study session to discuss ideas and prioritize vision; need comprehensive public safety program including prevention, suppression and intervention; Project Pride may be more robust, increased library hours and supports youth summer internship program; suggested Saturday Night Live program that can offer healthy activities; and CITY COUNCIL MINUTES 28 JANUARY 17, 2017 1 OA-28 • Homelessness continues to be an issue and priority; requested status of City's public declaration that it has a Public Health Crises, recommended a study session to review efforts by County and City. Councilmember Villegas: • Noted that he met with Susan Price, Director of Care Coordination with the County of Orange, and Supervisor Andrew Do about homeless encampment and offered assistance; will continue to meet on said matter; and • Will continue to address public safety concerns Councilmember Benavides • Expressed disappointment with some actions taken tonight; former City Manager brought large City experience to Santa Ana; opined that interest of the community not considered; and • Also noted that by -district elections would prevent carpet bagging and encourage public participation and community decision making. Mayor Pro Tern Martinez: • Wished Mayor a Happy Birthday; • Spoke of recent gang shootings and public safety in general, however more residents have died from pedestrian accidents - important to prioritize; • Suggested contracting with Sherriff's Department or another City to assist police department; need to implement prevention measures; consider Restorative Justice Program and CDBG funding; need to have sufficient staff to address shootings; • Noted that City has upcoming negotiations with all labor groups; important to maintain fiscal health - not commingle enterprise funds with general funds; requested copy of recent study by former City Manager on said topic. *Councilmember Benavides left at 10:12 p.m. and did not return. Mayor Pulido: • Look forward to working with Acting City Manager; need to manage budget; • Commented that economy continues to improve although Nordstrom exiting the Mall, work with economic development to bring another large retailer; also, Kia dealership may be moving; need to encourage similar businesses into the City. • Adjourned meeting in memory of Ami Rossignol-Lie and Werner Escher. ADJOURNED - 10:22 p.m. - The next meeting of the City Council is scheduled for Tuesday, February 7, 2017 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Business Meeting at 5:45 p.m. in the Council Chamber, 22 Civic Center Plaza, anta Ana, California. CITY COUNCIL MINUTES 29 JANUARY 17, 2017 1 OA-29 Adjourn Meeting in Memory of Ami Rossignol Lies and Werner Escher Maria D. Huizar, Clerk of the Council FUTURE AGENDA ITEMS • Community Engagement Program • Drone Regulations CITY COUNCIL MINUTES 30 JANUARY 17, 2017 10A-30 CANCELLATION NOTICE The regular meeting of the Parks, Recreation, Education and Youth Committee scheduled for January 23, 2017 at 5:30 p.m. has been cancelled. The next regularly scheduled meeting will be held on April 24, 2017 at 5:30 p.m. City Hall Ross Annex Room 1600 20 Civic Center Plaza Santa Ana, California 13A-2 CITY OF SANTA ANA PUBLIC SAFETY AND NEIGHBORHOOD IMPROVEMENT CITY COUNCIL COMMITTEE CANCELLATION NOTICE The City Council Public Safety and Neighborhood Improvement Meeting scheduled for January 24, 2017 has been cancelled. 13A-3 13A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: QUARTERLY REPORT OF INVESTMENTS AS OF DECEMBER 31, 2016 {STRATEGIC PLAN NO. 4, 1D) CITY MANAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: ET.J.T597i�_91 ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER In 1995, the State of California enacted legislation revising the reporting requirements relative to investment of funds by governmental agencies. California Code Section 53646 (b) states that if a quarterly report is rendered to the legislative body, the quarterly report shall be submitted within 30 days following the end of the quarter covered by the report. The legislation specifies that this quarterly report contain the seven major elements listed below: 1. Type of investments, 2. Date of maturity, 3. Par and dollar amounts invested in each security, 4. Weighted average maturity of the investments, 5. Market value as of the date of the report, 6. Source of the market value information, and 7. Any funds, investments or programs, including loans, under the management of contracted parties. These specifications include a statement outlining the ability of the City to meet the budgeted expenditures for the subsequent six months be submitted to the City Council on a quarterly basis. Staff performs an end -of -month expenditure analysis to comply with the expenditure requirement and a statement confirming the ability to meet this requirement in the monthly -and quarter -ending Treasurer's Report. The information is in compliance with State law and the City's Investment Policy. The attached Treasurer's Report (Exhibit 1) accurately reflects all pooled investments held on behalf of the City as of December 31, 2016. 19C-1 Quarterly Report of Investments February 07, 2017 Page 2 The following table represents percentage policy limits set by the City's Investment Policy and State Law and respective types, amounts and percentages, as of December 31, 2016. Type of Investment in $ in % COSA Policy Limits State Law Limits Certificate of Deposit (CD) $9,893,622.95 3.40% 30% 30% Federal Farm Credit Bank (FFCB) $59,492,550.00 20.47% None None Federal Home Loan Bank (FHLB) $62,984,533.00 21.68% None None Federal Home Loan Mortgage Corp. (FHLMC) $47,426,275.00 16.32% None None Federal National Mortgage Association (FNMA) $72,923,730.00 25.10% None None Local Agency Investment Fund (LAIF) $37,849,471.11 13.03% None None Sub -Total $290,570,182.06 100.00% None None Cash $23,304,454.19 Total $313,874,636.25 Restricted Cash in $ Restricted Cash $15,422,842.52 Total $15,422,842.52 t Restricted cash is held by Trustee, Bank of New York Mellon and is segregated from cash used for daily operations. The following graph represents percentages within the respective investment types, as of December 31, 2016. City of Santa Ana Investment Portfolio Asset Allocation December 31, 2016 LAIF 13.03% CD 3.40% aa� ■ Certificate of Deposit (CD) ■ Federal Farm Credit Bank (FFCB) ■ Federal Home Loan Bank (FHLB) ■ Federal Home Loan Mortgage Corp. (FHLMC) ■ Federal National Mortgage Association (FNMA) ■ Local Agency Investment Fund (LAIF) 19C-2 Quarterly Report of Investments February 07, 2017 Page 3 Effective Rate of Return' Month To Date (MTD) .99% Year To Date (YTD) 1.04% STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #4 - City Financial Stability, Objective #1 (Maintain a stable, efficient and transparent financial environment), Strategy D (Develop a fiscal health analysis tool that informs a department of its financial position in order to assist in its decision making process). FISCAL IMPACT There is no fiscal impact associated with this action. Francisco Gutierrez Executive Director Finance and Management Services Agency rp Exhibit: 1. 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W W W 2 2 y~ v v 2 t/WI Iw/l Y In Z N d Z Z Z yo y ppq Z 2 Z Z O U N �S$�SSo��$��o�mwfi.�dmmm mmmm�4 � g � a - i- � i x xxitxxx xx xx xii%x x�x' u iX 0 in rn �+inw 19C-11 �Qav 'e a $� 9 aR C a 4 N i c y 9 0 a w 0 z T N � G �Q Q E � 0 U N N 3 r m � � e v � o 19C-12 CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: QUARTERLY REPORT FOR HOUSING DIVISION PROJECTS AND ACTIVITIES OCTOBER 2016 — DECEMBER 2016 (STRATEGIC PLAN NO. 5,3) r' CITY MANAGER iil Ll L ■ a CLERK OF COUNCIL USE ONLY: _ 2200 a, © As Recommended © As Amended ❑ Ordinance on I" Reading El Ordinance on 2nd Reading El Implementing Resolution [f Set Public Hearing For, CONTINUED TO FILE NUMBER Receive and file the quarterly report for Housing Division Projects and Activities for the period of October 2016 — December 2016. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its regular meeting on January 25, 2017, by a vote of 6:0, the Community Redevelopment and Housing Commission approved the recommended action. DISCUSSION This report for the quarter ending on December 31, 2016 provides statistics for all of the affordable housing projects and activities for our Housing Division. The report is divided into three sections: Loan Activity, Loan Portfolio Management and Monitoring, and Development Projects. Loan Activity Applications The Housing Division offers several different programs including down payment assistance for first-time homebuyers and rehabilitation loans for mobile homes, single-family, multi -family, and historic homes. Inquiries are received from the public and applications are mailed out, received and approved for these programs on a continual basis. During this quarter, there were three Loan Subordination requests. Table 1 shows the number of inquiries, applications sent out, received and approved by type for the quarter and the total fiscal year. 19D-1 Quarterly Report for Housing Division February 7, 2017 Page 2 Table 1: Applications Sent Out, Received & Approved Inquiries Applications Applications Applications Program Sent Out Received Approved Q2 Total Q2 Total Q2 Total Q2 Total FY FY FY FY Single -Family Rehabilitation 15 30 20 35 1 2 0 0 Mobile Home Rehabilitation 12 26 15 27 2 3 1 2 Multi -Family Rehabilitation 2 6 0 1 0 0 0 0 Historic Home Restoration 0 0 2 2 0 0 0 0 Homeownership 30 30 30 1 30 0 2 0 0 Rehabilitation Loan Underwriting and Approval Progress For our rehabilitation loans, staff reviews applicant eligibility, verifies income and assets, and oversees underwriting to ensure compliance with program guidelines and requirements established by the funding source. In addition, staff conducts an inspection of the property, prepares a work write-up to determine rehabilitation work to be performed, and develops a budget for the work. Due to the complex funding requirements, applicants may be in underwriting for several months. The length of time in underwriting is largely determined by the applicant's timely submittal of the necessary paperwork. Once approved, staff prepares all necessary loan documents, makes arrangements for loan execution, and reserves the required loan funds. During this quarter, one mobile home rehabilitation loan was approved and one mobile home was sold to a qualifying family. The mobile home was acquired by the City when the original owner, a participant in the City's mobile home replacement program, passed away and had no beneficieries. In addition, the Single Family Rehabilitation Loan Program was featured on a Telemundo news segment in November. Rehabilitation Program Construction Progress During this phase, homeowners receiving rehabilitation loans are guided through an open selection of contractors to complete the work on their homes. Each homeowner is given a list of contractors that have been screened by staff for license and insurance requirements. However, homeowners are allowed to select any contractor that meets these same requirements. Staff assists the homeowners in the selection of a contractor, monitors the construction work, approves payments to contractors, and tracks expenditures to ensure they do not exceed available funds. At the end of this quarter, there were two homeowner rehabilitation projects out to bid and seven under construction. Downpayment Assistance Program Progress For our downpayment assistance program, staff evaluates applicant eligibility and oversees underwriting to ensure compliance with program guidelines and requirements established by the U.S. Department of Housing and Urban Development (HUD). Applicants must meet established income requirements, complete an eight -hour pre -purchase counseling program from a HUD - approved agency, be pre -qualified for a first mortgage and have a minimum of three percent of the purchase price from their own savings. Other HUD requirements apply, including a current 19 D-2 Quarterly Report for Housing Division February 7, 2017 Page 3 maximum sales price of $480,000 for a single family home or condo or $480,000 for a newly constructed condo or home. The updated maximum sales price became effective on May 2, 2016. Additionally, the property needs to be in good condition and pass an inspection. During this quarter, staff conducted one down payment assistance workshop. A total of eight people attended the workshop. Loan Portfolio Management & Monitoring The Housing Division is responsible for managing the residential loan portfolio. As of the end of this quarter, the principal balance was $112,960,740. This is comprised of 424 loans of which 400 are deferred or residual receipt payment loans. As shown in Table 2, the loan portfolio generated $266,065 in payments of principal and interest during the quarter. Table 2: Portfolio Revenue Source 2nd Quarter Total FY Loan Payoffs $64,985 $96,369 Residual Receipts Payments $161,382 $301,692 Amortized Loan Payments $39,698 $70,085 Total $266,069 $468,146 Monitoring As part of the requirements for these funds, staff must monitor the owner -occupancy for single family homes that have received loans, and the code compliance of units in rental projects with long-term affordability covenants. During this quarter, 75 owner -occupancy recertification letters were mailed; 63 were returned and processed. Staff also audited files for 128 units in 40 projects, and conducted code compliance inspections for 30 units in 3 projects. Regulations require that only a sample of units be selected for inspection. Staff also inspects the grounds and common areas such as laundry rooms to ensure they also meet municipal code requirements. The grounds, common areas and almost all of the inspected units were found to be in compliance at the time of initial inspection. Two smoke alarms, one carbon monoxide detector and one wall heater were inoperable. All of the deficiencies were immediately repaired and passed inspection. Development Projects NSP 1, 11 and 111 Programs The City's intermediaries, ANR Industries, Orange Housing Development Corporation, and C&C Development, continue to look for eligible properties for this program. 19 D-3 Quarterly Report for Housing Division February 7, 2017 Page 4 Habitat for Humanity of Orange County Permits for the construction of five homes located at 4010 - 4026 E. McFadden Street were issued in November and construction commenced in December. Once completed, the homes will be sold to qualified low- and moderate -income homebuyers. Depot at Santiago (New 70-Unit Affordable Rental Housing Development) Construction commenced in April 2016 and the retaining walls and podium columns are nearly complete. The project is expected to be completed in the Fall of 2017. Andalucia Apartments (New 70-Unit Affordable Rental Housing Development) The exterior of all of the buildings is complete and the unit interiors are about 75% complete. The site work is still underway. The project is expected to be completed by the beginning of March 2017. Santa Ana Arts Collective (Adaptive Reuse for 57 Units of Affordable Rental Housing) The Developer, Meta Housing Corporation, was awarded funds through a Request for Proposal (RFP) process to acquire and develop 57 affordable rental housing units with a preference for applicants who are artists and working artist families within Santa Ana. The Developer has completed the entitlement process. The project was awarded and accepted 9% Tax Credits in December 2016. On December 14, 2016, the City received a letter from Meta Housing Corporation requesting the City to commit $3.1 million in additional City funds to fill a shortfall they are projecting for their financing due to the unanticipated nationwide fluctuation in the Low - Income Housing Tax Credit equity market. Staff is currently researching this request and will bring forward a recommendation at a later date. The Orchard (Rehabilitation of 71 Units of Affordable Rental Housing) The Developer, Community Development Partners and Mercy House, was awarded funds through two Request for Proposal (RFP) processes to acquire and rehabilitate a former motel on First Street into 71 units of permanent supportive housing for homeless individuals. The Developer was successful in obtaining tax credits and affordable housing bonds, and is anticipated to start construction during this quarter. First Street Apartments (New 69-Unit Affordable Rental Housing Development) On April 19, 2016, City Council approved an award of inclusionary housing in -lieu fees to the Developer, AMCAL Multi -Housing LLC, for the First Street Apartments project and approved a conditional loan commitment letter of $8,795,000 that will be contingent on the City's actual receipt of in -lieu fee payments of $9,695,725.60, or a portion thereof, or a cash equivalent to the in -lieu fee payments from the Heritage Village OC, LLC. On December 20, 2016, City Council approved a pre -commitment letter of $6,195,000 in Housing Successor Agency funds to AMCAL Multi -Housing for the project to bridge $2,600,000 of inclusionary housing in -lieu fees anticipated to be received from Heritage Village for the first phase. 19 D-4 Quarterly Report for Housing Division February 7, 2017 Page 5 STRATEGIC PLAN ALIGNMENT The activities covered by this report allow the City to meet Goal #5 (Community Health, Livability, Engagement & Sustainability) Objective #3 (Facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods). FISCAL IMPACT There is no fiscal impact _associated with this action. Deputy City Manager City Manager's Office 19D-5 19 D-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATEa FEBRUARY 7, 2017 TITLE: PUBLIC WORKS AGENCY STATUS OF PROJECTS - MONTHLY CAPITAL IMPROVEMENT PROGRAM EXECUTIVE REPORT FOR JANUARY 2017 (STRATEGIC PLAN NO. 5, 1) CITY kANAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED 71 As Recommended Q As Amended Ordinance on 18' Reading ® Ordinance on 2nd Reading ® Implementing Resolution El Set Public blearing For CONTINUED TO FILE NUMBER The January 2017 Capital Improvement Program Executive Summary Schedule (Exhibit 1) provides departmental activity in alignment with the stated goals of the Strategic Plan. The report includes tasks, next steps, outcomes, and percentage completed for each project. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #1 (establish a comprehensive community engagement initiative to expand access to information and create opportunities for stakeholders to play an active role in discussing public policy and setting priorities). FISCAL IMPACT There is no iscal 1 Fre Mo saviaoL impact associated with this item. Exe6utive Director Public Works Agency FM:lo Exhibit: 1. 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DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED 0 As Recommended 0 As Amended 0 Ordinance on 18' Reading 0 Ordinance on 2n' Reading 0 Implementing Resolution 0 Set Public Hearing For CONTINUED TO FILE NUMBER The City of Santa Ana receives an annual allocation of Community Development Block Grant (CDBG) funds from the United States Department of Housing and Urban Development (HUD) to improve low to moderate -income neighborhoods, eliminate blight and create a more stable economic base. These funds have been used for a diverse range of programs including housing, street improvements, park and public facilities improvements, economic development, code enforcement and public services. The City's estimated CDBG allocation for Fiscal Year (FY) 2017-18 is $5,127,675, and reflects a three percent reduction from the current year allocation. The City may use a maximum amount of fifteen percent or $769,151 for City and nonprofit administered public service programs. On February 8, 2017 City staff will commence the CDBG application process and will release an application for nonprofits to apply for $320,810 in CDBG funding for FY 2017-18, equivalent to a three percent reduction from current year. The remaining amount of $448,341 will be allocated as in prior years for internal City -administered public service programs. These amounts are subject to adjustments based on the final CDBG allocation from HUD, anticipated in late March 2017. Staff strongly recommends continuing its $30,000 minimum funding amount per applicant to ensure that CDBG programs make the greatest impact in the community.Nonprofit applications for CDBG funding will be made available through a new online grant management software accessible through the City's website. The grant management software has the capabilities for online application submission, rating, and reporting. This is the first year that the City will implement the use of the CDBG online application, and staff will be available to assist nonprofits with technical support throughout this process. Nonprofit organizations interested in applying will be required to attend a mandatory CDBG training that will cover federal regulatory requirements, 19F-1 Nonprofit CDBG Application Process FY 2017-18 February 7, 2017 Page 2 local requirements, and information on the use of the online application. Proposed programs are required to meet the national objective of an activity that provides a benefit to low- and moderate - income persons and align with the City's Strategic Plan. The Community Redevelopment and Housing Commission (CRHC) will review and provide funding recommendations for applicants. CRHC recommendations will then be presented in April for City Council consideration and approval. Marketing of the CDBG application process and nonprofit outreach efforts will include a press release, use of social media (via the City's Facebook page), a -mails via a nonprofit distribution list, mailings to nonprofits, and a dedicated CDBG webpage at www.santa-ana.org/cdbq with information on CDBG resources. The followina is a tentative timeline: Dates Actions February 8 - Online application released (4-week application period) - Outreach efforts February 16 - 28 - Mandatory CDBG training dates: 2/16, 2/23, 2/28 March 8 - Applications due at 5:00 PM March 9 - March 29 - Staff review for CDBG eligibility - Community Redevelopment & Housing Commission (CRHC) review March 22 - CDBG Public Hearing at CRHC - Nonprofit Presentations April 5 - CRHC funding recommendations (Special Meeting) April 18 - CDBG Public Hearing at City Council - Approval of FY 2017-2018 CDBG programs at City Council STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (support neighborhood vitality and livability). FISCAL IMPACT There is no fiscal impact associated with this action. Robert C. Cort z Deputy City Ma gen---- — City Manager's Office RC/SV/sb Exhibit: 1. Draft CDBG 2017-18 Application 19F-2 9 .: *7Z : W DRAFT - City of Santa Ana Community Development Block Grant FY 2017-2018 (Non -Profit Application) City of Santa Ana- CDBG The U.S. Department of Housing and Urban Development (HUD), Community Development Block Grant (CDBG) program is a flexible program that provides communities with resources to address a wide range of unique community development needs. The program provides annual grants on a formula basis to entitled cities and counties to develop viable urban communities by providing decent housing and a suitable living environment, and by expanding economic opportunities, principally for low- and moderate -income persons. Funding The City of Santa Ana (City) will release approximately $320,000 to experienced nonprofit organizations for the provision of public service that include an emphasis on crime prevention, intervention, and/or suppression efforts for children, youth and/or families. Programs will be funded from July 1, 2017 through June 30,'2018. The City will continue its $30,O00 minimum funding amount per applicant to ensure that CDBG programs make the greatest impact in our community. Organization Requirement Nonprofit organizations must be in good standing and have no outstanding monitoring findings prior to a 2017-18 CDBG award. All nonprofit applicants must be able to document 501(c)(3) status. Applicants whose status is pending at the time of application will not be considered for funding. Cost Reimbursement Agreement Grants are provided through a Cost Reimbursement Subrecipient Agreement. Reimbursement requests are allowed on a quarterly basis; therefore organizations must have enough working capital to continue services until a reimbursement request can be processed by the City. Only allowable and allocable CDBG expenses will be reimbursed. The term of the agreement will be July 1, 2017 through June 30, 2018. Insurance Requirement Organizations approved for CDBG funding will be required to obtain a minimum of $1,000,000 general liability insurance and Workers' Compensation insurance for the term of the contract. In addition, the City must be listed as additionally insured via an endorsement with the endorsement stating that the insurance is primary and noncontributory. EXHIBIT 1 19F-3 DRAFT CDBG APPLICATION Eligible Activities Requirement This application is intended to request funds to support public service programs. Title 24 CFR 570.201(e) - Provision of public services (including labor, supplies, and materials) including but not limited to those concerned with employment, crime prevention, child care, health, drug abuse, education, fair housing counseling, energy conservation, or recreational needs. For fiscal year 2017-18, programs with an emphasis on crime prevention, intervention, and/or suppression efforts for children, youth and/or families will be considered. National Objective Requirement The proposed program must meet the national objective of activities that provide a benefit to low- and moderate -income persons. At minimum the program must serve 51 % low- and moderate- income persons. In general, to document compliance with the national objective requirement, funded programs will require the collection, calculation, and documentation of the participant's family size and income. City of Santa Ana Consolidated Plan Priority Need Requirement Applications for fiscal year 2017-18 must meet a FY 2017/18-2019/20 Consolidated Plan priority need. The Consolidated plan is available for review HERE. City of Santa Ana Strategic Plan Goal Requirement The City requires that the proposed program align with a Strategic Plan Goal. The following goals apply to public service programs, and are listed with additional detail in question 9 of the application: 1) Community Safety, 2) Youth, Education, Recreation 3) Community Health, Livability, Engagement & Sustainability. To access the full text of the Strategic Plan visit HERE. Federal Requirements Resource Links If funded, organizations will also need to comply with several federal requirements. For more information on these requirements organizations may view the following websites. • Playing by the Rules - A Handbook for CDBG Subrecipients on Administrative Systems: HERE • Guide to National Objectives and Eligible Activities for CDBG Entitlement Communities: HERE • To view Uniform Administrative Requirement, Cost Principles, and Audit Requirements for Federal Awards, 2 CFR 200, visit: HERE • To view the CDBG Federal Regulations, 24 CFR Part 570, visit: HERE Workforce Collaboration Requirement All applicants approved for CDBG funding will be required to enter into a Memorandum of Understanding (MOU) with the Santa Ana Work Center. The purpose is to establish a cooperative working relationship between the parties in order to provide program beneficiaries with information about Work Center opportunities to find better jobs and careers. 19F-4 IMMA IIU L19Y1[93r1i1C Additional Requirements This application will be available for public display. Therefore do not include any information that is subject to state or federal confidentiality regulations (i.e. an address to a domestic violence shelter). The attached application contains several questions regarding city residents. Residency of participants is determined by the last permanent address. The City will hold organizations accountable for the information included, such as expected service level. Review of Applications City Staff will review applications for completeness and to determine the eligibility of the program. The Community Redevelopment and Housing Commission (CRHC) will review and recommend public service funding levels to City Council. City Council will review the recommendations provided by the CRHC for funding to determine which activities will be in the best interest of the community. Anticipated Timeline 02/08/17 Applications distributed to Nonprofit Organizations awarded for the 2016-17 Fiscal Year. Mandatory Workshop (Only need to attend ONE date) 2/16/17 - 2:00 pm - 20 Civic Center Plaza, Room 1600 2/23/17 - 9:00 am - 20 Civic Center PIaza, Room 1600 2/28/17 - 9:00 am - 20 Civic Center Plaza, Room 1600 03/08/17 Applications due by 5 p.m. 03/22/17 Community Redevelopment and Housing Commission (CRHC) Public Hearing for CDBG funding recommendations 04/05/17 CRHC funding recommendations 04/18/17 City Council Public Hearing for CDBG funding approval If there is a question about any part of the application please contact City Staff at CDBG - ESGhrantsn.santa-a a.org or 714-647-6561. 19F-5 A' l NNYe1A\IallNl_\INIP DATE: March 8, Applications must be submitted through Foundant NO LATER THAN 5 P.M., March 8.2017. ABSOLUTELY NO LATE APPLICATIONS WILL BE ACCEPTED. An email notifying receipt will be sent upon completion of application. If you do not receive an email please contact City Staff at (714) 647-6561. Do not add extra pages or attachments unless instructed to do so. Any supplemental material such as letters of support, press clippings, etc., will not be accepted as part of this application submittal. Limit responses to the space provided; any additional narrative beyond the provided space will not be considered. Submit one complete application for each proposed program. Financial Statements & Single Audits (Single Audit required if organization expended more than $750,000 of federal funds within a program year) Choices Application Form Staff Listing (Attachment 1) Certifications (Attachment.2) 2017-2018 Proposed Program Budget (Attachment 3) 2016-2017 Current Program Budget (Attachment 4) IRS Nonprofit Designation Letter (Attachment 5) Form 990 (Attachment 6) Current/Proposed Client Eligibility Intake Form (Attachment 7) Board of Directors, By-laws and Articles of Incorporation (Attachment 8) Conflict of Interest Questionnaire (Attachment 9) Financial Statements & Single Audit (Attachment 10) Organization Chart (Attachment 11) Memorandum of Understanding with the Santa Ana WORK Center (Attachment 12) NOTES: Failure to provide all required information will cause this application to become invalid and will not be considered for funding. The City reserves the right to withdraw consideration of this application if evidence of compliance is not provided or if compliance status changes during the application process. The City reserves the right to waive a requirement if it is determined to be in the best interest of the City. 19F-6 DRAFT CDBG APPLICATION 1 1:. Il i u.. LL 1 Legal Organization Name* Character Limit: 100 Date Organization Founded* Character Limit: 10 Date of Nonprofit incorporation* Character Limit: 10 SERVICE AND FUNDING Q1. Total number of unduplicated individuals to be served during FY 2017- 2018 by this program: (Include Santa Ana residents and Non -Santa Anaresidents) a. Total number of City of Santa Ana residents* Character Limit: 250 b. Percentage of City of Santa Ana residents served by the program:* Character Limit: 250 c. Total number estimated to be low-income* Character Limit: 250 Character Limit: 250 Q2. Estimated yearly units of service* (Number of unduplicated individuals multiplied by service visits — i.e. 200 youth X 25 tutoring sessions = 5,000 units of service) Character Limit: 250 Q3. Total CDBG funds requested for FY 2017-2018* ($30,000 minimum) Character Limit: 20 Q3A. Minimum Willing to Accept to Run Your Program ($30,000 minimum) Character Limit: 20 QA. Cost per participant* (Total CDBG funds requested divided by Total to be served) Character Limit: 20 19F-7 DRAFT CDBG APPLICATION +. i' I,. I x e r.•. 1 I f r • I Character Limit: 10 Character I • • I • r I r • I C. Total Program Expense in 2014-2015 Character Limit: 15 C. Total Program Expense in 2015-2016 Character Limit: 15 C. Total Program Expense in 2016-2017 Character Limit: 15 D. Total years the program has been in existence. Character Limit: 250 Q6. Provide a concise description of the proposed program.* (300 character maximum) Character Limit: 200 Q7. Provide a detailed description of the proposed program. Include the following:* a. detailed description of services provided b. frequency of service delivery (i.e. daily, weekly, monthly); c. how the service is provided (i.e. one-on-one, classroom settings, home visits, phone referrals); and d. target population groups (i.e. youth in specific neighborhoods) (5,000 character maximum) Character Limit:5000 i. ►. I. � • I^ I r is e I ,I �.i . .• or similar • /, 19F-8 DRAFT CDBG APPLICATION Highlight accomplishments Character Limit: 5000 Community Safety - Enhance Public Safety integration, communications and community outreach: • The Santa Ana Police Department will collaborate with the Orange County Probation Department, Orange County Healthcare Agency caseworkers, business community, and associated non-profit organizations to assist in re-entry of recently released offenders into the community. Youth, Education, Recreation - Expand youth programming #1: • Focus resources on quality youth engagement, enrichment and education programs through community centers, libraries and after -school programs during out -of -school hours. Youth, Education, Recreation - Expand youth programming #2: • Expand the youth sports program so that youth recreational opportunities are established year-round. Youth, Education, Recreation - Partner with groups and organizations to promote education, senior services, job training and development for all Santa Ana residents #1: • Partner with The California Endowment, Santa Ana College, Chapman University, UCI, CSUF, and other institutions of higher education to design career pathway programs that support priority workforce industries (Retail, healthcare, manufacturing, renewable energies) that results in faster reemployment of Santa Ana's residents. Youth, Education, Recreation - Partner with groups and organizations to promote education, senior services, job training and development for all Santa Ana residents #2: • Partner with the Santa Ana Unified School District to support and assist in developing pilot youth employment programs aimed at reducing high school dropout rates. Youth, Education, Recreation - Partner with groups and organizations to promote education, senior services, job training and development for all Santa Ana residents #3: • Continue to expand services and programs at the senior centers specifically in the areas of continuing education, mentoring and recreation. Community Health, Livability, Engagement & Sustainability - Support neighborhood vitality and livability #1: • Implement new Neighborhood Improvement Initiatives focusing on residential areas that have been adversely affected by disinvestment and decline. Program and services from a variety of resources will be utilized to achieve positive and sustainable improvements. Community Health, Livability, Engagement & Sustainability - Promote a strong arts and culture infrastructure #2: • Generate public and private support and resources to strengthen, expand and stabilize funding for the arts. 19F-9 DRAFT CDBG APPLICATION Community Health, Livability, Engagement & Sustainability - Focus projects and programs on improving the health and wellness of all residents #3: • Integrate a variety of health and wellness programs into existing programming at each of the city's community/recreation centers (e.g. Develop equitable health access points). Community Health, Livability, Engagement & Sustainability - Focus projects and programs on improving the health and wellness of all residents #4: • Partner with the California Endowment, Schools, charitable foundations and other non- profit organizations to implement health and wellness programming (including a healthy Santa Ana website) based on quantifiable and measurable data. Community Health, Livability, Engagement & Sustainability - Focus projects and programs on improving the health and wellness of all residents #5: • Expand Senior Center programming to provide greater enrichment and explore activities in art, culture and health. a. CDBG applications must meet a City of Santa Ana Strategic Plan Goal* The goals above have been determined to align with CDBG eligible public service activities. (Please select only one goal explained above which the proposed program meets). Choices Community Safety- Enhance Public Safety integration, communications and community outreach. Youth, Education, Recreation - Expand youth programming # 1. Youth, Education, Recreation - Expand youth programming # 2. Youth, Education, Recreation - Partner with groups and organizations: # 1 Youth, Education, Recreation - Partner with groups and organizations: # 2 Youth, Education, Recreation - Partner with groups and organizations: It 3 Community Health, Livability, Engagement & Sustainability; # 1 Community Health, Livability, Engagement & Sustainability: # 2 Community Health, Livability, Engagement &.Sustainability: # 3 Community Health, Livability, Engagement & Sustainability: # 4 Community Health, Livability, Engagement & Sustainability: # 5 Q10. Strategic plan alignment AND emphasis on crime prevention, intervention and/or suppression.* Describe how the program meets the City of Santa Ana Strategic Plan AND has an emphasis on crime prevention, intervention, and/or suppression efforts for children, youth and/or families. Character Limit: 5000 Q11. Will this program result in new service or increase the level on an existing service?* a. is not a duplication of existing services available; or b. demonstrates a quantifiable increase in access and/or the level of an existing service provided to the target population. Choices Yes No 19F-10 DRAFT CDBG APPLICATION If yes, describe how the direct service proposed Character Limit: 5000 Q12. Similar Services* List similar services that are currently provided in the community and describe how the proposed program complements or fills an existing gap in services Character Limit: 2000 CQ13. Neighborhood Initiative Area* An area that that has been adversely affected by disinvestment and decline is considered a Neighborhood Initiative area. Does the program serve residents of a Neighborhood Initiative area? Choices Yes No If yes, please describe below If yes, please describe the area boundaries and reasons the area fits Neighborhood Initiative criteria. Character Limit: 5000 Q15. Will the program be conducted within the City of Santa Ana boundaries* Choices Yes No If no, explain how Santa Ana residents will be served Character Limit: 5000 Q16.Organization Participation* List Santa Ana neighborhood associations, local community organizations and/or civic groups the organization participates in and to what extent. Character Limit: 5000 CQ17. List the benchmarks the organization will use to determine success of the program* Provide intended outcomes. Character Limit: 5000 CQ,18. Track and Measure Performance* Describe how the organization will track and measure performance outcomes qualitatively and quantitatively. Character Limit: 5000 19F-11 DRAFT CDBG APPLICATION Q19. List federal grants that the organization has received within the last 5 years* Include grant amounts, services provided, and outcomes. Character Limit: 5000 Q20. Summarize the qualifications of the organization's staff* (Program & Administrative) that would allow the organization to provide the services stated and comply with regulatory requirements. Character Limit: 5000 FILE UPLOADS Please download all forms to your desktop and then fill out. If you try to fill out the form from the download screen, the information will not be saved when you try to upload it. Attachment 1- Staff Listing* Form is available here for download. proposed program) File Size Limit: 5 MB Attachment 2 - Certifications* Form is available here for download. File Size Limit: 5 MB (Include Admn and Program Staff working on the PLEASE COMPLETE THE FOLLOWING FORMS REGARDING BUDGETS 2017-2018 PROPOSED PROGRAM BUDGET (ATTACHMENT 3) 2016-2017 CURRENT PROGRAM BUDGET (ATTACHMENT 4) IMPORTANT NOTICE: The City asks that you list other secured funding sources on the budget forms, but the City realizes that all other funding sources may not be secured at the time of this application. Organizations may include unsecured resources with the understanding that the City will hold the organization to the same service level indicated in the application whether all the resources listed are actually received or not. The only item that will affect the service level expected by the City will be the responses provided under numbers 3 and 3a of this application and the amount of funding provided by the City for the CDBG 2017-2018 grant year. Attachment 3 - 2017-2018 Proposed Program Budget* Form is available here for download. Please note that there are two sheets in the workbook and both need to be filled out. File Size Limit: 1 MB rsc 19F-12 DRAFT CDBG APPLICATION Attachment 4 - 2016-2017 Current Program Budget* Form is available here for download. Please note that there are two sheets in the workbook and both need to be filled out. File Size Limit: 1 MB Attachment 5 - IRS Nonprofit Designation Letter* Please upload a copy of your organization's IRS nonprofit designation letter. File Size Limit: 1 MB Attachment 6 - 990 Form* Plese upload a copy of your organization's 990 form. File Size Limit: 1 MB Attachment 7 - Current/Proposed Client Eligibility Intake Form* Please upload a copy of your organization's current/proposed client eligibility intake form. File Size Limit: 1 MB Attachment 8 - Board of Directors, By -Laws and Articles of Incorporation* Please upload a copy of the organization's current list of the Board of Directors, by-laws and articles of incorporation. File Size Limit: 1 MB Attachment 9 - Conflict of Interest Questionnaire* Form is available here for download. File Size Limit: 1 MB Attachment 10 - Recent Financial Statements and Single Audit* Please upload a copy of the organizations most recent financial statement and single audit. If you are not required to have a single audit because you have not expended over $750,000 in Federal Funding, please upload a letter stating this. File Size Limit: 1 MB Attachment 11- Organization Chart* Please upload a copy of your organization chart. File Size Limit: 1 MB Attachment 12 - Memorandum of Understanding with the Santa Ana WORK Center* Form is available here to download. File Size Limit: 5 MB 11 19F-13 19F-14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: CONTRACT AWARD TO LOS ANGELES TRUCK CENTERS, LLC, FOR TWO COMPRESSED NATURAL GAS DUMP TRUCKS (SPEC. NO. 16-139) {STRATEGIC PLAN NO. 6,2) CH MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on lot Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize a one-time purchase and payment of purchase order to Los Angeles Truck Centers, LLC, for the purchase of two, tandem axle, compressed natural gas dump trucks, in the amount of $360,050 plus a five percent contingency of $18,000, for a total amount not to exceed $378,050, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The Finance and Management Services Agency, Facilities, Fleet Maintenance and Central Stores Division is responsible for the acquisition, maintenance, repair, and replacement of vehicles, trucks, and maintenance equipment. The City's Vehicle Replacement Policy provides guidelines and criteria for determining when vehicles need replacement. This criteria includes vehicle age, mileage, maintenance costs, and safety history. As a result of reviewing the City's replacement criteria, two dump trucks purchased in 2002 and assigned to the Public Works Agency have been identified for replacement. The purchase of these two Compressed Natural Gas (CNG) fueled dump trucks continues the effort by Fleet staff to purchase alternative fuel vehicles to create an environmentally responsible City Fleet. Over the course of the past three years, the City has purchased 6 CNG vehicles, 11 Liquefied Petroleum Gas (LPG or Propane) vehicles, 4 electric utility vehicles, and constructed an LPG fueling station at the Corporate Yard. Staff routinely evaluates all new vehicle purchases to determine the feasibility of using alternative fuels while also complying with Air Quality Management District (AQMD) standards for large maintenance vehicles. For large maintenance vehicles such as these dump trucks, the City is required by AQMD to purchase non -diesel engines. These two dump trucks will be used by the Public Works Agency maintenance staff for the water and sewer programs. 22A-1 Contract Award for Compressed Natural Gas Dump Trucks February 7, 2017 Page 2 The Notice Inviting Bids was advertised on November 8, 2016, on the City's online bid management and publication system. A summary of the bid invitations and bids received is as follows: 37 Vendors were notified 7 Vendors downloaded the bid packet 1 Bid received 0 Bids received from Santa Ana Vendors The bids were opened on December 6, 2016, and evaluated. The bid received from Los Angeles Truck Centers, LLC, is responsive to the specifications and meets the City's requirements. To allow for unanticipated charges, a five percent contingency has been included in the award amount. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Strategic Plan Goal #6 — Community Facilities & Infrastructure, Objective #2 (address deferred maintenance on City buildings and equipment). FISCAL IMPACT Funds in the amount of $378,050 are available in FY 2016-17 in the following Public Works accounts: Water Systems Maintenance Account (No. 06017641-66400 - $189,025) and Sanitary Sewer Service Account (No. 05617640-66400 - $189,025). AdoJieur Ex cutive Director Public Works Agency CLIsp APPROVED AS TO FUNDS AND ACCOUNTS: As� "go Y aya�c Q Francisco Gutierrez �? Executive Director Finance & Management Services Agency 22A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: CONTRACT AWARD TO ELECTRIC CAR SALES AND SERVICE FOR TWO GEM UTILITY VEHICLES (SPEC. NO. 16-132) (STRATEGIC PLAN NO. 6,2) (SURPLUS ALLOCATION FUNDING) CI Y MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended Ordinance on 1 e' Reading Ordinance on 2n6 Reading ❑ Implementing Resolution ❑ Set Public Hearing For,_ CONTINUED TO .ilF5l1[1P17► a Authorize a one-time purchase and payment of purchase order to Electric Car Sales and Service for the purchase of two Polaris GEM electric utility vehicles in an amount not to exceed $39,155 plus a contingency of $1,175 for a total amount of $40,330, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The Finance and Management Services Agency, Facilities, Fleet Maintenance and Central Stores Division is responsible for the acquisition, maintenance, repair, and replacement of vehicles, trucks, and maintenance equipment. The City's Vehicle Replacement Policy provides guidelines and criteria for determining when vehicles need replacement. This criteria includes vehicle age, mileage, maintenance costs, and safety history. As a result of reviewing the City's replacement criteria, two electric utility trucks purchased in 2001 and assigned to Park Maintenance have been identified for replacement. The purchase of these two electric vehicles continues the on -going effort by Fleet staff to purchase alternative fuel vehicles in an effort to create an environmentally responsible City Fleet. Over the course of the past three years, the City has purchased six Compressed Natural Gas (CNG) vehicles, eleven Liquefied Petroleum Gas (LPG or Propane) vehicles, two electric utility vehicles and constructed a LPG fueling station at the Corporate Yard. Staff routinely evaluates all new vehicle purchases to determine the feasibility of using alternative fuels while also complying with AQMD standards for large maintenance vehicles. The City also received grant money from AQMD to install a new CNG fueling station at the Yard, which should be completed in 2018. For small electric utility trucks, the City has standardized on purchasing Polaris GEM model vehicles. Over the course of many years, the City has tried various make and models and staff 22B-1 Contract Award for GEM Utility vehicles February 7, 2017 Page 2 has concluded that the GEM utility vehicle is the most reliable, driver friendly and efficient vehicle to maintain. Polaris sells their vehicles through a network of authorized dealerships and they offer a pre-set government reduced pricing strategy through the competitively bid National Joint Powers Alliance (NJPA) contract. As a result, if the City did perform a competitive bidding process, pricing would be the same for all bidding vendors. There are currently no Santa Ana vendors that are authorized to sell the Polaris Gem electric utility vehicle. The Santa Ana Municipal Code Section 2-807 (a) notes that an exemption from competitive bidding may be in order for purchases of equipment whenever there is one reasonably available source or where solicitation of bids would for any reason be an idle act. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Strategic Plan Goal #6 — Community Facilities & Infrastructure, Objective #2 (address deferred maintenance on City buildings and equipment). FISCAL IMPACT Funds in the amount of $40,330 are available in FY 2016-17 in the Council Special Projects - Finance Fleet Maintenance account (05010022-66400). APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez 41 Executive Director Finance and Management Services Agency CL/sp 22B-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: AWARD CONTRACT TO GOLDEN STATE CONSTRUCTORS FOR THE BOMO KORAL PARK SIDEWALK RENOVATIONS (PROJECT NO. 16-2671) (STRATEGIC PLAN NO. 6, 1C) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 101011 ❑ As Recommended ❑ As Amended ❑ Ordinance on tat Reading ❑ Ordinance on god Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Award a contract and authorize the City Manager and the Clerk of the Council to execute a construction contract to Golden State Constructors, the lowest responsible bidder, in accordance with the base bid plus Additive Alternates 1, 2, 3, and 4, in the total amount of $71,099, for the term beginning upon execution of the contract and ending upon project completion, for construction of the Bomo Koral Sidewalk Renovations project, subject to nonsubstantive changes approved by the City Manager and the City Attorney. 2. Approve the Project Cost Analysis for a total estimated project delivery cost of $133,900, which includes the contract base, Additive Alternates 1, 2, 3, and 4, administration, inspection, testing, and a $52,136 contingency, to capitalize on competitive unit prices and implement additional improvements. DISCUSSION This project was identified by Parks & Recreation staff, and supported by the community as a priority project that should be funded using surplus allocation funds approved by the Council in 2016. The project consists of renovating the pathways within Bomo Koral Park (Exhibit 1). The scope of work includes sidewalk and tree well replacements. In addition, Additive Alternates 1, 2, 3, and 4 will add new equipment, such as tables, benches, and receptacles in the picnic area. Once completed, these improvements and new equipment will benefit the neighborhood and enhance safety for all park users. A Notice Inviting Bids was advertised on November 15 and 21, 2016, and bids were opened December 7, 2016. The following is a summary of the bid invitations made and the bids received: 23A-1 Award Contract for Bomo Koral Sidewalk Renovations February 7, 2017 Page 2 Contractor Participation Data Santa Ana contractors receiving notices 10 Contractors requesting bidding documents 15 Bids received 9 Bids received from Santa Ana contractors 1 Bid Results Summary RANK BIDDER'S NAME LOCATION BASE BID BASE BID + Al to A4 1 Golden State Constructors Placentia $47,700 $71,099 2 CT&T Concrete Paving, Inc. Diamond Bar $49,000 $77,340 3 Minako America Corporation Gardena $51,000 $78,750 4 LC Paving & Sealing, Inc. San Marcos $55,500 $71,688 5 Foddrill Construction Corporation Chino $56,800 $82,500 6 Naka Engineering & Construction Inc. Laguna Hills $59,900 $73,590 7 HYM Engineering, Inc. Buena Park $69,500 $81,850 S ND Construction Co., Inc. Anaheim $77,264 $122,934 9 Hardy & Harper, Inc. Santa Ana $96,000 $185,000 A total of nine bids were received and all were considered responsive. Golden State Constructors submitted the lowest responsive bid, in the amount of $47,700 (Exhibit 2), which is comparable to the Engineer's Estimate of $51,000. The bid for Additive Alternates 1, 2, 3, and 4 provide good value to the City. Since there are sufficient funds available, staff recommends including Alternates 1, 2, 3, and 4 in the construction contract, resulting in a total contract for $71,099 (Exhibit 3). The combination of excellent unit pricing with available Parks funds will allow staff to strategically implement these additional cost- effective improvements to the project. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy C (invest resources and technology to extend the service life of existing infrastructure to protect the City's investment and support a high quality of life standard). 23A-2 Award Contract for Bomo Koral Sidewalk Renovations February 7, 2017 Page 3 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended actions are exempt from further review. Categorical Exemption Environmental Review No. 2016-153 was filed for this project, and a Certification of Categorical Exclusion and Statutory Worksheet has been prepared in accordance with the National Environmental Policy Act. FISCAL IMPACT As indicated in the Cost Analysis (Exhibit 4), the estimated total construction delivery cost of this project is $133,900, which includes construction, contract administration, inspection, testing and an authorized contingency of $52,136. Funds are budgeted in the PRCSA Council Special Projects Fund (Account No. 05013018-66220, Project No. 16-2671) for expenditure in Fiscal Year 2016-17. Hecutive Director Public Works Agency Jeannie Jurado Acting Executive Director Parks, Recreation & Community Services Agency FM/EWG/TC/MO Exhibits: 1. Location Map 2. Bid 3. Construction Contract 4. Cost Analysis APPROVED AS TO FUNDS & ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 23A-3 23A-4 P- J O F N GOC1 LEGEND mPROJECT LOCATION SANTA ANA CITY COUNCIL n^I AGENDA DATE: February 7, 2017 PUBLIC WORKS AGENCY Iuf:ULL•i�7PL•i:3A7�7 EXHIBIT I BOMO KORAL SIDEWALK RENOVATIONS (PROJECT 16-2671) d 0 j PAGE 1 OF 1 23A-5 23A-6 CITY OF SANTA ANA PROPOSAL Exhibit 2 PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION BID PROPOSAL TO: CITY COUNCIL OF THE CITY OF SANTA.ANA FROM: Golden State Constructors REQUIREMENT: The undersigned bidder declares that they have carefully examined the location of the proposed work, that they have examined the Contract Documents in its entirety and hereby proposes to ftunish all material and do all the work recluired to complete the said work in accordance with said plans (if any) and the specifications for the unit price(s) or lump sutn(s) set forth in the following schedule: BOMO KORAL SIDEWALK Item (Description Quantity Unit Unit Price Amount *1 Remove and Construet4" -5" PCC 5000 SF $ $ Sidewalk 9.30 46,500 *2 Root Shave 2 EA $ $ - 600 1200 TOTAL BASE BID $ 47,700 ADD ALTERNATE ONE BID: *3 Concrete Picnic Table 4 EA $ $ 1 1 1145 4580 TOTAL ADD ALTERNATE ONE BID $ 4580 ADD ALTERNATE TWO BID: *4 CanoreteFlatBench 2 EA 10 $ 962 -90 1925 E TOTAL ADD ALTERNATE TWO BID $ 1925 213A--l7 CITY OF sANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION ADD ALTERNATE THREE BID: Item Description Quantity Unit Unit Price Amount *5 Waste Receptacles 4 EA 848.50 3394 TOTAL ADD ALTERNATE WO RID 3394 ADD ALTERNATE FOUR BID: *6 Remove and Construct FCC Tree Well 9 EA $ � 1500 13,5UU l TOTAL ADD ALTERNATE FOUR BID 13 , 5 30 2 oI 4 CITY 01J'SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION TOTAL ADD ALTERNATE ONE BID $4580 TOTAL ADD ALTERNATE'IWO BID $ 1925 TOTAL ADD ALTERNATE THREE BID $ 3395 TOTAL ADD ALTERNATE FOUR BID $ 13,500 TOTALBASEBID $ 47,700 The lowest responsible bidder -hall be selected based on the total base bid. The City reserves the right to award the Base Bid, and any, all, or none of the add -alternate bid items (if any). The quantity for this bid item is shown for bid comparison only. This bid item shall not be subject to the "25%" limit as stated in Section 3-2 of the Standard Specifications. The actual amount for this item will be dictated, by the actual quantity used, and the Agency reserves the right to increase or decrease the quantity of this item accordingly. TIME FOR COMPLETION OF IMPROVEMENTS AND LIQULDATED DAMAGES The undersigned bidder hereby proposes to complete the Work for the total base bid amount shown above, within Twenty (20) working days after the commencement date stated in the Notice to Proceed. If any or all of add alternates one, two or three are added these work shall be completed within. Fifty (50) working days after cornmencerrient elate in the Notice to Proceed. The liquidated damages amount, in lien of the amourit specified in Subsection 6-9 of the Standard Specifications, shall be $3,00gpqr calendar day. Name of Firm Golden Stat Signature of BIDDER Title Presi.dent (If an individual, so state. if a firm or co -partnership, state the firr.n name and give the names of all individual co-partners composing the firm. if corporation, state legal name of corporation, and names of President, Secretary, Treasurer and Manager, thereof) CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION BIDDER'S STATEMENT BIDDER understands and agrees that this Bid Proposal, Contract Documents and subsequent Construction Contract Agreement shall constitute the entire agreement between BIDDER and the AGENCY only after it has been accepted by the City Council, endorsed by the Clerk of the Council with her signature and official seal noting hereon the action of approval of the Council, signed by the Public Works Agency Executive Director or his/her duly authorized agent, and signed by the City Attorney, denoting his approval of the form of this document, and its execution, and when it or an exact copy of it has been either delivered to BIDDER or deposited with the United States Postal Service properly addressed to the BIDDER with the correct postage affixed thereto. BIDDER further agrees that upon delivery (as defined above) of the accepted agreement he/she will furnish AGENCY all required bonds and certificate of liability insurance within ten (10) business days or the fluids, check, draft, or BIDDERS bond substituted in lieu thereof accompanying this proposal shall become the property of the AGENCY and shall be considered as payment of damages clue to the delay and other causes suffered by AGENCY because of the failure to furnish the necessary bonds and because it is distinctly agreed that the proof of damages actually suffered is difficult to ascertain; otherwise said funds, check, drafts„ or BIDDER'S bond substituted in lieu thereof shall be returned to the undersigned. BIDDER understands that a bid is required for the entire work, the estimated quantities set forth in the bid schedule are solely for the purpose of comparing bids, and that final compensation under the contract will be based upon the actual quantifies of work satisfactorily completed. The BIDDER also certifies that the bid is a balanced bid. In accordance with Section 7028.15 of the California Business and Professions Code, the undersigned certifies under penalty of perjui that the foregoing is true and correct. Name of Firm Golden State /ns�ruyrtors Signature of BIDDER Title president (If an individual, so state. If a firm or co -partnership, state the firm name and give the names of all individual co-partners composing the firm. If a corporation, state legal name of corporation, and names of President, Secretary, Treasurer and Manager, thereof.) 23060f It CITY OF SANTA ANA PROPOSAL, PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION CONTRACTOR'S LICENSING AND REGISTRATION STATEMENT The undersigned contractor, or corporate officer, declares tinder penalty of perjury that he/she and all his/her subcontractors are registered with the State of California Department of Industrial Relations (DIR), and that the following is true and correct. Contractor's Name: Golden State Constructors Business Address: 2.08 E. Orangethorpe Ave Placentia, Ca Business E-Mail Address: ron@goldensci.com Telephone: 714-625-8758 State Contractor's License No. and Class: 867060 - A, B, C-8 License Expiration Date: 3/31/17 State Dept. of Industrial Relations (DIR) Registration No.: State Dept. of Industrial Registration Expiration I Signed: Title: President 1000004019 6/30/2017 2�AL'9 1 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION PREVAILING WAGE COMPLIANCE AND MONITORING STATEMENT Contractor is aware of the requirements of California Labor Code Section 1720, et seq., as well as California Code of Regulations, Title 8, Section 16,000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. Since the services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the services available to interested parties upon request, and shall post copies at the Contractor's principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. The undersigned certifies that the forego is true and correct. Name of Firm Golden Stat on, tr .tore Signature of BIDDER Title President (if an individual, so state) 23Af T2 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO K.ORAL SIDEWALK RENOVATION OWNERSHIP AFFIDAVIT STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS: CITY OF3MN* Placentia ) Ronnie Cochran being duly sworn, deposes and says: [i INDIVIDUAL That he/she is the party making the foregoing proposal: ❑ PARTNERSHIP That he/she is a member of the co -partnership firm designated as: and who has been and is duly vested with the authority to make and execute instruments for the co -partnership by: who constitute the other members of the co -partnership, ® CORPORATION That he is of Golden Stage Constructors ----------------- a corporation which is making the foregoing proposal: ❑ JOINT VENTURE That he is of: one of the parties mating the foregoing proposal as ajoint venture, and the he/she has been and is duly vested with the authority to execute instruments for an on behalf of the parties malting said bid who are: that such a bid is genuine and not collusive or sham, and has not in any manner sought by collusion to secure any advantage against the City of Santa Ana or any person interested in the proposed contract, for himself or any other person. Subscribed and w`8i , o before me this r day of Pec� 24+6— Signature of officer Administerin ath (Notary Public) If, I oq'J CALIFORNIA ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT 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. State of California County of Orange On I2-6--16 before me, Claudia Cochran, Notary Public ara ralst name and title at the officer) personally appeared ----Ronnie Cochran ... who proved to me on the basis of satisfactory evidence to be the person(*whose name(&) is/a subscribed to the within instrument and acknowledged to me that he%Fi,�executed the same in his/har4 authorized capaclty(�), and that by his/4er4fw,4 signatures) on the instrument the person(s), or the entity upon behalf of which the person( 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. CLAUDIA cocNeaN COMM # 2095862 WITNESS my hand and official seal. z'- ORANGE COUNTY g fL. NOTARY PUBLIC-CALIFORNIAZ MY COMMISSION EXPIRES Notary Public Signature (Notary Public Seal) ADDITIONAL OPTIONAL INFORMATI DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) v Number of Pages —Document Date CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) • Corporate Officer (Title) ❑ Partnar(s) • Attorney -in -Fact Trustee(s) Other INSTRUCTIONS FOR COMPLETING TIIIS FORM QN Vusjorm complies with current California.statuterregardingnolary wording and, iij,weded,, should be completed and ouaclred to the document. Acknowledgments f ren other states may be ranrpleteal documents beingsant to that state so long as the wording does not require the California namy to violate Caltfornia notary law. • State slid County Information nest be the State and County where the document signcr(a) personalty appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by it comma and then your title (notary public), • Print the names) of document signers) who personally appear at the time of notarization. • Indicate ate correct singular or plural fours by crossing off incorrect fours (i.e. Ire/shelthey,—is Also ) nr circling the correct Fours. Failure to correctly indicate this information may lead to rejection of document recording. • 'The notary seal impression cleat be clewand photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re -seal if a sufficient area permits, otherwise complete aditterent acknowledgment form. • Signature of the notary public must match the signature on Ric with the oluce of the county clerk. Additional infounation is not required but could help to ensure this acknowledgment is lint micased or attached to a different document. Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signor, If the claimed capacity is a corporate officer, indicate the title (i.e. CFO, CFO, Secretary). • Securely attach this document to the signed document with a staple. CITY OF SANTA ANA Bond No.: GOLST-332 PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION BID BOND KNOW ALL PRESENT that, Golden State Constructors , as BIDDER, and North American Specialty Insurance Company , as SURETY, are held and firmly bound unto the CITY OF SANTA ANA, as AGENCY, in the penal sum of Ten Percent Of The Total Amount Bid Dollars ($ 10% Of Bid ), which is ten percent (10%) of the total amount bid by BIDDER to AGENCY for the above -stated project, for the payment of which sum, BIDDER and SURETY agree to be bound, jointly and severally, firmly by these presents. THE CONDITIONS OF THIS OBLIGATION ARE SUCH that, whereas BIDDER is about to submit a bid to AGENCY for the above -stated project, if said bid is rejected, or if said bid is accepted and a contract is awarded and entered into by BIDDER in the manner and time specified, then this obligation shall be null and void, otherwise it shall remain in full force and effect in favor of AGENCY. IN WITNESS WHEREOF the parties hereto have set their names, titles, hands, and seal this 6th day of December 20 16 . BIDDER* Golden State SURETY* 208 E. Orangethorpe Ave. Placentia, CA 92870 Telephone: ('714) 025-8758 6 Hutton Centre Drive, Suite 850 Matthew R. Dobyns, Attorney -in -Fact Subscribed and sworn to before me this day of ­_­, 20 Signature: Notary Public in and for the County of , State of * Provide BIDDER/ SURETY name, address, and telephone number and the name, title, address, and telephone number of authorized representative, P-8 of P-17 23A-15 NAS SURETY GROUP NORTH AIVICRICAN SPECIALTY INSURANCE COAIPANY WASHINGTON INTERNATIONAL INSURANCE COMPANY GENERAL POWER OF ATTORNEY RNOW ALL MENBY THESE PRESENTS, THAT North American Specially Insurance Company, a corporation duly organized and existing under laws of the State of New Hampshire, and having its principal office in the City of Manchester, New Hampshire, and Washington International Insurance Company, a corporation organized and existing under the laws of the State of New Hampshire and having its principal office in the City of Schaumburg, Illinois, each does hereby make, constitute and appoint: RANDYSPOHN and MATTHEW R. DOBYNS ,JOINTLY OR SEVERALLY Its true and lawful Attorney(s)-in-Fact, to make, execute, seal mid deliver, for and on its behalf and as its act and dead, bonds or other writings obligatory in the nature of a bond on behalf of each of said Companies, as surely, on contracts of suretyship as are or may be required or permitted by law, regulation, contract or otherwise, provided that no bond or undertaking or contract or suretyship executed under this authority shall exceed the amount of. FIFTY MILLION ($50,000,000.00) DOLLARS This Power of Attorney is granted and is signedby facsimile under and by the authority of the following Resolutions adopted by the Boards of Directors of both North American Specialty Insurance Company and Washington International Insurance Company at meetings duly called and held on the 9" of May, 2012: "RESOLVED, that any two of the Presidents, any Managing Director, any Senior Vice President, any Vice President, any Assistant Vice President, the Secretary or ally Assistant Secretary be, and each or any of them hereby is authorized to execute a Power of Attorney qualifying the attorney named in the given Power of Attorney to execute on behalf of the Company bonds, undertakings and all contracts of surety, and that each or any of them hereby is authorized to attest to the execution of any such Power of Attorney mid to attach therein the seal Grille Company; and it is FURTHER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and mry such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be binding upon the Company when so affixed and in the future with regard to any bond, undertaking or contract of surety to which it is attached." 60U011`A41TVfllltii/i/ itS Q4ii... �NJ./� +• SEAL .n^ atnvnn Y. AnJoraw,smiar Vice President of Wnahingtnn lnfernnnonnl avvurnnce Compxny ,g 31ALs 1073 m3 &Seaioe Vim Preside¢ of North Atnerlcmt SpaclNty Yana... Centpnny rNllHlllliarit B -•+• �` - MkheelA.IIn,STV,eP,asidee notnginn ncenniC a7Twu.... on, rMI1MIIIN & Senior Vice ProslJent ofNotlh Amerdcnn Spoclnity rnsaranee Compmry IN WITNESS WHEREOF, North American Specialty Insurance Company and Washington International Insurance Company have caused their official seals to be hereunto affixed, and these presents to be signed by their authorized officers this loth day of May , 2016 , North American Specialty Insurance Company Washington International Insurance Company State of Illinois County of CGOIc SS: On this 10th day of May , 2016 , before me, a Notary Public personally appeared Steven P. Anderson , Senior Vice President of Washington International Insurance Company and Senior Vice President of North American Specialty Insurance Company and Michael A. Ito , Senior Vice President of Washington International Insurance Company and Senior Vice President of North American Specialty Insurance Company, personally known to me, who being by me duly sworn, acknowledged that they signed the above Power of Attorney as officers of and acluiowledged said instrument to be the voluntary act and deed of their respective companies. [=STATE N,0TAN019 M. Kenny. Notary Public�MI2017 1, Jeffrey Goldberg the duly elected Assistant Secretary of North American Specialty Insurance Company and Washington International Insurance Company, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney given by said North American Specialty Insurance Company and Washington International Insurance Company, which is atfd in full force and effect. IN WITNESS WHEREOF, I have set my hand and affixed the seals of the Companies this bill clay of December , 20 16 , rearey Goldhorg, Vice President & Assistant Seeaotnry of Washington lateamilonal licaraoee Company & North Alnericea Specialty rea mnae Conpony CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verities 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. State of CALIFORNIA County of ORANGE On December 6th, 2016 before me ERIKA GUIDO✓ NOTARY PUBLIC. personally appeared MATTHEW R. DOBYNS , ® who proved to me on the basis of satisfactory evidence to be the personH whose nameH is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity {-les}, and that by his/her/their signatures) 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, ERIKA GUIDO GOMM # 2022671 WITNESS my and nd official seal. ' g NOTARY PUBLIC CALIFOftN1A " . ORANGE COUNTY M coma expires Mays' 20i igglatw a of N try QpONAT Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER ❑ PARTNER(S) ❑ LIMITED ® ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: _ NAME OF PERSON(S) OR ENTITY(IES) ,4,jA- 1 1 CALIFORNIA ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT 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. State of California County of Orange On L2 —6 —( 6 before me, Claudia Cochran, Notary Public o-lore insert name and titleo the officer) personally appeared —---Ronnie Cochran a who proved to me on the basis of satisfactory evidence to be the persons}whose name(&&) is/ere subscribed to the within instrument and acknowledged to me that hefsheAhey-executed the same in hisil eita{theif authorized capacity(), and that by his/+efefM",4 signature(s) on the instrument the person(44, or the entity upon behalf of which the person( acted, executed the instrument. 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. Notary Public Signature 11111IILei ►111i�1➢ilLei Or-11� OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continuod) Document Dato CAPACITY CLAIMED BY THE SIGNER Individual (s) CJ Corporate Officer (Title) ❑ Partner(s) C] Attorney -in -Fact Ej Trustee(s) p Other .. ,. C6AUDIA COCHRAN •l '+ COMM It 2095862 Z , ORANGE COUNTY NOTARY PUBLIC-CALIFORNIA MY COMMISSION EXPIRES —' JAN. 30, 2l)19 (Notary Public Seal) INSTRLICTIONS FOR COMPLETING THIS FORM 3N Thisfornn coapfdes with rau•renlC'nlrfornia•f[atutes regnrrling rrofmy rrordtng arid, ifneedad, should be canipleted turd attarlred to [het dorwaernt. Ackmm�dedgmenns from other stales niay ba eoapleted for documents heing sent to that stale so long as the wo,dhrg does not require the California notary to violate California notary law. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public fbr acknowledgment. • Date of notarization must be the date that the signers) personally appeared which must also be the same date the acknowledgment is completed. • The notary public trust print his or tier name as it appears within his or her commission followed by a comma and then your title (notary public), • Print the name(&) of' document signer(&) who personally appear at the time of notarization. • Indicate the correct singular or plural fomms by crossing off incorrect forms (i.e. ho!flhe!Uto}� is lure ) or circling the correct forms. Fat [tire to correctly indicate this information may lead to refection of document recording. • The notary seal impression must be clear and photographically reproducible. impression must not cover text or lines. If seal impression smudges, re -seal if it sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with fie office of the county clerk. Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document, Indicate title or type ofarached domuncnt, number of pages and date. Indicate the capacity claimed by the signer. if the claimed capacity is a eorpornte officer, indicate the title (Le, CEO, CFO, Secretary), • Securety attach thin documont to the signed document w(th a staplo. CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION LIST OF SUB -CONTRACTORS Section 4100 et, seq. of the Public Contract Code requires listing of all subcontractors with the bid for all subcontract work exceeding the following amount: o Streets, highways including' bridge projects: Yi% of the bird or $10,000, whichever is greater o Buildings, parks, or other projects: ''/a% of the bid Section 1725.5 of the Public Contract Code requires all Subcontractors be registered with the State Department of Industrial Relations (DIR). BIDDER proposes to subcontract certain portions of the work to the firms listed below: Name License #/Exp. DIR Reg. #/Exp. Location Phone Type Of Work Amount $ % Name License #/Exp. DIR Reg. #/Exp. License # Location Phone Type Of Work Amount $ Name License DIR Reg. License # Type Of Amount Name License #/F.,xp. DIR Reg. #/Exp. Location Phone S Type O ark Name License #/Exp. DIR Reg. 4/Exp. License # Location Phone Type Of Work Amount $ Name License #/Exp. DIR Reg. #/Exp. License # Location Phone Type Of Work Amount $ 23AP- a CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION The following are the names, addresses, and telephone numbers for THREE public agencies for which the BIDDER has performed similar work within the past three years. City of Anaheim 200 S. Anaheim Boulevard Anaheim, CA 92805 Name and Address of Owner. Mike Wood (714) 765-5100 Name and Telephone Number of person familiar with project. $750, 000 Remove replace curb, gutter sidwalka 3/31/2016 - yearly renewal Contract Amount Type of Work Date Completed 2. _City of Irvine 6427 Oak Canyon Bldg. 1 Irvine CA 92618 Name and Address of owner. Reza Ja£ari - Tel:(949) 724-7545 Name and Telephone Nlunber of person familiar with project. $450,000 - Remove rerlaee curb, cutter eidwalka 6/2016 - yearly renewal Contract Amount Type of Work Date Completed 3, City of Chino Hills, 14000 City Center Drive, Chino Hills, CA 91709 Name and Address of owner. Jerry Barragan (909) 364-2846 _ Name and Telephone Number of person familiar with project. $230,000 Remove replace curb gutter sidwalks 9/2016 - yearly, renewal Contract Amount Type of Work Date Completed The following are the names, addresses, and telephone numbers of all brokers and sureties from whom BIDDER intends to procure insurance and bonds. R S Bonding 1633 E. 4th Street, Suite 228, Santa Ana, CA 92701 Phone: (714) 541-4700 Zlk'W CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION ADDITIONAL REFERENCES The following are the names, addresses, and telephone numbers for THREE public agencies for which the BIDDER or Subcontractor has performed street improvement work in the past S years. 2. 3, Naive and Address of Owner, Name and Telephone Number of person familiar with project. Contract Amount Type of Work Date Completed Name and Address of weer. Name and Telephone Numb of person familiar with project. Contract Amount Type of Work Date Completed Name and Address of owner, y Name and Telephone Number of person familiar with project. Contract Amount Type of ork Date Completed The following are the names, addresses, and telephone an bers of all brokers and sureties from whom BIDDER intends to procure insurance and bonds. k3AC121 +CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671. BOMO KORAL SIDEWALK RENOVATION NON -COLLUSION AFFIDAVIT (Title 23 United States Code Section It 2 and Public Contract Code Section 7106) In accordance with Title 23 United States Code Section 1.12 and Public Contract Code 7106 the BIDDER declares that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the BIDDER has not directly or indirectly induced or solicited any other BIDDER to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived or agreed with any BIDDER or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the BIDDER has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the BIDDER or any BIDDER, or to .fix any overhead, profit, or cost element of the bid price, or of that of any other BIDDER, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that a]I statements contained in the bid are true; and, further, that the BIDDER has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Note: The above Non -collusion Affidavit is part of the Proposal. Signing this Proposal on the signature po,'>n thereof shall also constitute signature of this Non -collusion Affidavi,. certifier to Signed Slate � California County,of*., Subscribed and, s) BIDDEare pputoed that making a false certification may subject the affirmed) before me on this day of �royed to me on the basis of satisfactory person(s) who appeared before me Notary Public Signature Notary Public __, 20__, by evidence to be the 23AL22 CALIFORNIA ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT 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. State of California County of —orange } On 1 2 - 6-1 & before me, Claudia Cochran. Notary Public ore reem name And title of the o car personally appeared ----Ronnie Cochran - - a-• who proved to me on the basis of satisfactory evidence to be the person(*whose name(&.) is/epee subscribed to the within instrument and acknowledged to me that he/eHe�executed the same in his/her/th& authorized capacity4es), and that by his/tlgeiw signature(&-) on the instrument the person(&}, or the entity upon behalf of which the person(s) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct CLAUDIA CDCNRAN r r' COMM # 2095$62 WITNESS m hand and official seal. , :ue ORANGE COUNTY .-Y NOTARY PUBLIC•CALIFORNIAZ - D MYCOMMISSIONEXPIRES Notary u WSIgnature (Notary Public Seal) ADDITIONAL OPTIONAL INFORI DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) of Pages ____, Document Date CAPACITY CLAIMED BY THE SIGNER Individual (s) ❑ Corporate Officer (Title) El Partner(s) ❑ Attorney -in -Fact Trustee(s) p Other INSTRUCTIONS FOR COMPLETING THIS FORM This form complies with currmn California staaazs regarding rotary wording and, ifneeded, should be nanyleterd and attached to the document Acknowledgments ,boor other stales may be completedfin- documents being sent to lbtd state so long as the wording does not require the California notary to violate California notary law. • State and County information must be the State and County where the document signer(s) personally Appealed before the notary public for acknowledgment. • Date of real imflorr must be the date that the signers) personally appeared which rnust also be diesnow data the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comnm and then your title (notary public), • Print tine name(s) of document signcr(s) who personally appear at the tittle of notarbodion. • Indicate We correct singular or plural forms by crossing off incorrect forms (i.e. heishe/they,-is /are lot cireliug doe correct forins. Failure to cmnectly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re -seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Siguourc of the notary public must match the signaun'e on file with the office; of the county clerk. •o Additional information is not required but could help to ensure this acknowledgment is snot nnisused or attached to a different document. Indicate title or type ofatmehod document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (Le. CLO, CFO, Secretary). • Securely attach this document to the signed document with a staple. CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION NON-DISCRIMINATION CERTIFICATE The undersigned contractor or corporate officer, during the performance of this contract, certifies as follows: 1. The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without, regard to their race, color, religion, sex, or national origin, Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 2. The Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin, 3. The Contractor shall send to each labor union or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Contractor shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretory of Labor. The Contractor shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his/her books, records, aid accounts by the administering agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such rules, regulations, and orders, 6. In the event of the Contractor's non-compliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Execution Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as otherwise provided by law, CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION The Contractor shall include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontract or purchase order as the administering agency may direct as means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Contractor may request that the United States enter into such litigation to protect the interests of the United States. 8. Pursuant to California Labor Code Section 1735, as added by Chapter 643 Stats. 1939, and as amended, no discrimination shall be made in the employment of persons upon public works because of race, religious creed, color, national origin, ancestry, physical handicaps, mental condition, marital status, or sex of such persons, except as provided in Section 1420, and any contractor of public �mks viol ing this Section is subject to all the penalties imposed for a violation of the ' is erls ,lX Signed: Z/ ,✓z LAC Title: President Firm: Golden Stage Constructors Inc. Date: 12/6/16 23f#A- %ri25 CITY OF SANTA ANA PROPOSAL, PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION STATEMENT REGARDING APPRENTICESHIP REQUIREMENTS The undersigned BIDDER is familiar with the requirements of Section 1777.5 of the State Labor Code regarding employment of apprentices, and understands that contractors on contracts exceeding $30,000 or 20 working days shall: Apply to the joint apprenticeship committee administering the apprenticeship standards of the craft or trade in the area of the site of the public work for a certificate approving the contractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected. 2. Employ the number of apprentices or the ratio of apprentices to journeymen stipulated in the apprenticeship standards. 3. Contribute to the fwid or funds in each craft or trade in which he/she employs journeymen or apprentices on the public work, in the same amount or upon the same basis and in the same manner as the other c rf�'iactors, except contractors not signatory to the trust agreement shall pay a like amount t t Ca r pprenticeship Council. Signed: Title: President Firm: Golden. State Constructors Date: 12/6/16 2 ALE a CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION STATEMENT REGARDING "ANTI -KICKBACK" REOUIREMENTS The undersigned is submitting this proposal for performing by contract the work required by these bid documents, agrees to comply with the Copeland "Anti -Kickback" Act (1.8 USC 74) as supplemented in the Department of Labor regulations (29 CFR, Part 3). This act provides that each contractor or subcontractor shall be prohibited from inducing, by any means, any person employed in the constracc�7� or repair of public work, to give up any part of the compensation to which he/she is otherw,i�e. w itA d' Signed: Il V VA,—, Title: President Firm: Golden State Constructors Date: 12/6/16 23127 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 16-2671 BOMO KORAL SIDEWALK RENOVATION PUBLIC CONTRACT CODE SECTION_10.162 QUESTIONNAIRE In conformance with Public Contract Code Section 10162, the BIDDER shall complete, under penalty of perjury, the following questionnaire: Has the BIDDER, any officer of the BIDDER, or any employee of the BIDDER who has a proprietary interest in the BIDDER, ever been disqualified, removed, or otherwise prevented from bidding on, or completing a federal, state, or local government project because of a violation of law or a safety regulation? Yes No Xx If the answer is yes, explain the circumstances in the following space. MIAof 28 23A-30 Exhibit 3 CITY OF SANTA ANA CONSTRUCTION CONTRACT PROJECT NO. 16-2671 BOMO KORAL SIDEWALK RENOVATIONS This CONSTRUCTION CONTRACT is made and entered into this 7 h day of February,, by and between the CITY OF SANTA ANA, CALIFORNIA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, hereinafter referred to as "CITY" and Golden State Constructors, hereinafter referred to as "CONTRACTOR". WITNESSETH: The CITY and the CONTRACTOR, for the consideration hereinafter named, mutually agree as follows: 1. CONTRACTOR agrees to perform all the work and furnish all the materials at its own cost and expense necessary to construct and complete in a good and workmanlike manner and to the satisfaction of the City Engineer of the CITY, the Bomo Koral Sidewalk Renovations Project, hereinafter referred to as the "Work of Improvement" identified in and in accordance with the Contract Documents prepared by the City's Public Works Agency and approved by the City Council. 2. The complete Construction Contract consists of the "Contract Documents" as defined by the Standard Specifications for Public Works Construction and which include the following: • Notice Inviting Bids • Information to Bidders • Bid Proposal • Bid Bond • Contract Form • Contract Bonds • General Provisions • Special Provisions • Technical Provisions and Project Plans • Appendices In case of conflict between the Contract Documents, the precedence of documents shall be as established in the Standard Specifications for Public Works Construction. 3. CITY agrees to pay and CONTRACTOR agrees to accept in full payment to complete the Work of Improvement the sum total amount not to exceed $71,099.00 — Seventy-one Thousand Dollars Ninety-nine and no cents, as set forth and identified in the BID PROPOSAL, which is attached hereto and incorporated herein as Exhibit "A." Page 1 of 3 23A-31 CITY OF SANTA ANA CONSTRUCTION CONTRACT PROJECT NO. 16-2671 BOMO KORAL SIDEWALK RENOVATIONS The BID PROPOSAL contains a schedule of unit price(s) or lump sinn(s) based on approximate quantities only, and the City does not expressly or by implication agree that the actual amount of work will correspond therewith, but reserves the right to increase or decrease the amount of any class or portion of the work or to omit portions of the work as may be deemed necessary or advisable. 4. CONTRACTOR agrees to complete the Work of Improvement within the time specified in the Time for Completion of Improvements section of the BID PROPOSAL (Exhibit "A") including commencing construction within the timeframe therein specified after issuance of a Notice to Proceed. 5. The CONTRACTOR will pay, and will require all subcontractors to pay, all employees on the Work of Improvement a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations for this work in accordance with applicable State and Federal law. 6. CONTRACTOR shall, after award of this Contract, furnish two bonds to be approved by the CITY, one in the amount of One Hundred Percent (100%) of the Contract price, to guarantee the faithful performance of the work (Performance Bond), and one in the amount of One Hundred Percent (100%) of the Contract price to guarantee payment of all claims for labor and materials furnished (Payment Bond). This Contract shall not become effective until such bonds are supplied to and approved by the CITY. 7. CONTRACTOR shall, prior to the release of the performance and payment bonds or the retention payment, furnish a warranty performance and payment bond (Warranty Bond). Said Warranty Bond shall also be required as a condition of project acceptance. For projects up to $500,000, the Warranty Bond amount shall be the greater of $10,000 or 20% of the final contract price. For projects above $500,000, the Warranty Bond amount shall be the greater of $100,000 or 10% of the final contract price. S. CONTRACTOR shall, after award of this Contract, furnish Certificates of Liability Insurance and Worker's Compensation Insurance as outlined in the General Provisions, to be approved by the CITY. Page 2 of 3 23A-32 CITY OF SANTA ANA CONSTRUCTION CONTRACT PROJECT NO. 16-2671 BOMO KORAL SIDEWALK RENOVATIONS IN WITNESS WHEREOF, the parties hereto have executed this Construction Contract on the day and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney BY{�01n✓ J Funk Assistant City Attorney CITY OF SANTA ANA: Gerardo Mouet Acting City Manager FOR APPROVAL: Fred Mousavipour Executive Director, Public Works Agency CONTRACTOR: Title: Page 3 of 3 23A-33 23A-34 COST ANALYSIS CONSTRUCTION OF THE PROJECT NO. 16-2671: BOMO KORAL SIDEWALK RENOVATIONS Construction Contract $ 71,099.00 Contract Administration $ 2,765.00 Inspection and Testing $ 7,900.00 Contingencies $ 52,136.00 TOTAL ESTIMATED CONSTRUCTION COSTS $ 133,900.00 EXHIBIT 4 23A-35 23A-36 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: AGREEMENT AMENDMENT WITH GEOSPATIAL TECHNOLOGIES FOR ANNUAL SOFTWARE MAINTENANCE AND SUPPORT FOR THE POLICE DEPARTMENT'S AUTOMATIC VEHICLE LOCATION SYSTEM {STRATEGIC PLAN NO. 11 5A} A,Z�l 1 - CITY ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY X9206 W ❑ As Recommended [] As Amended ❑ Ordinance on 13' Reading ❑ Ordinance on 2°d Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a one-year agreement amendment with GeoSpatial Technologies, Inc., for the period of December 16, 2016 through December 15, 2017, for software maintenance and customer support in an amount of $20,898 plus a $5,000 contingency for a total not to exceed amount of $25,898, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION On December 1, 2015, the City Council approved agreement A-2015-279 with GeoSpatial Technologies, Inc. to provide software licensing, maintenance, and support for the Santa Ana Police Department's Automatic Vehicle Location (AVL) system. This system enables the Police Department to track its patrol cars and other marked vehicles. This AVL system software is proprietary and owned by GeoSpatial Technologies, Inc. and can only be serviced by this company. This agreement allowed for two (2) one-year options for renewal of services. The Police Department wishes to execute the first one-year renewal option with GeoSpatial Technologies, Inc. for $20,898, plus a $5,000 for unanticipated expenditures, for a total not to exceed amount of $25,898. The Police Department has a separate $36,500 agreement with GeoSpatial for the maintenance and use of the Department's crime mapping software. GeoSpatial has performed well under both agreements, and the Police Department is recommending approval of this AVL software agreement amendment. 25B-1 GeoSpatial Agreement February 7, 2017 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #1 - Community Safety, Objective #5, Provide high quality Police and Fire/Emergency Medical Services response within the City of Santa Ana, Strategy A, Monitor and report key performance goals such as standards of cover, response time and location of apparatus (e.g. police units, fire trucks, etc.) to ensure agreed upon service levels are met. FISCAL IMPACT Funds for this agreement in the amount of $25,898 are available in Police Department's Information Services contract services account (no. 01114425 62300) for the following fiscal years: FY 2016-17 12,190 FY 2017-18 13,708 Total 25,898 CA Carlos Rojas Chief of Police Santa Ana Police Department Exhibit: 1. Agreement with GeoSpatial APPROVED AS TO FUNDS AND ACCOUNT: Francisco Gutierrez Executive Director Finance and Mgmt. Services Agency 25B-2 Exhibit 1 FIRST AMENDMENT TO SOFTWARE MAINTENANCE AND SITE LICENSE AGREEMENT THIS FIRST AMENDMENT to the above -referenced agreement is entered into December 16, 2016 by and between GeoSpatial Technologies, Inc., a California Corporation, (hereinafter "GST"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The parties entered into Agreement #A-2015-279 dated December 16, 2015 ("Agreement"), by which Consultant agreed to maintain and license automated vehicle locator ("AVL") tracing software and mobile mapping services. B. The agreement provides for two one year options for renewal exercisable by mutual agreement pursuant to the terms of section 3 of the agreement. C. The City desires to renew the contract for one (1) year to terminate on December 15, 2017, Now, therefore, in consideration of the mutual and respective promises, and subject to the terms and conditions of said Agreement, except as herein modified, the parties agree as follows: 1. Section 2, Compensation is amended to add the following: City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in the quote attached hereto as Exhibit "B" and incorporated herein by reference. The total surn to be expended under this Agreement shall not exceed $20,898.00 plus a $5,000 contingency to be used at the City's sole discretion for a total not to exceed amount of $25,898.00. 2. Section 3, Term, is amended to add the following: This Agreement shall commence on December 16, 2016 and terminate on December 15, 2017 with one (1) one year option for renewal exercisable by mutual agreement of the parties unless terminated earlier in accordance with Section 12 of the Agreement. 3. Except as hereinabove modified, all terns and conditions of said Agreement shall remain in full force and effect. 25B-3 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM SONIA R. CARVALHO City AJk)meY ( QU dN�� By: Tamara Bogosian Assistant City Attorney RECOMMENDED FOR APPROVAL: CARLOSROJAS Chief of Police CITY OF SANTA AlVA GERARDO MOUET Acting City Manager GEOSPATIAL TECHNOLOGIES, INC. By: Hong Chou Chief Technology Officer 25B-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: APPROVED LIST OF COMMUNITY HOUSING DEVELOPMENT ORGANIZATIONS (STRATEGIC PLAN NO 5,3) CITY M AGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: F-11»:ZHV/MIN ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Certify Jamboree Housing Corporation, American Family Housing and Mercy House as Community Housing Development Organizations and place these entities on the Approved List of Community Housing Development Organizations as prequalified to apply for a set -aside of up to $504,550 in HOME Investment Partnerships Program funds for up to a three-year term from March 1, 2017 to February 29, 2020. 2. Authorize the City Manager and the Clerk of the Council to enter into agreement(s) with the Approved List of Community Housing Development Organizations after a project is or projects are submitted by the prequalified entities and approved by staff, subject to non -substantive changes approved by the City Manager and City Attorney. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION RECOMMENDATION At its regular meeting on December 28, 2016, the Community Redevelopment and Housing Commission recommended the certification and approval of the prequalified Community Housing Development Organizations by a vote of 7:0. DISCUSSION The City of Santa Ana annually receives federal grant funds through the HOME Investment Partnerships Program (HOME) for the development of affordable housing. The U.S. Department of Housing and Urban Development (HUD) has commitment deadlines for these HOME funds that require grant funds to be committed within two years from the date of their original allocation. In addition, the HOME regulations require that participating jurisdictions set -aside at least 15 percent of their HOME allocation for housing that is developed, owned, or sponsored by Community Housing Development Organizations (CHDO). A CHDO is a nonprofit, community - based organization with the capacity to develop affordable housing for the community. In order to qualify for designation as a CHDO, the organization must meet the requirements pertaining to 25C-1 Approved List of Community Housing Development Organizations February 7, 2017 Page 2 their legal status, organization structure, capacity, and experience as required by the HOME regulations. The City of Santa Ana provided organizations with an opportunity to apply for the 15 percent set - aside of CHDO funds under prior Request for Proposals. However, the selected projects were unable to qualify or fully use the CHDO funds made available by the City. In order for the City to fully use this set -aside of HOME funds and meet HUD's commitment deadlines, the City released a Request for Qualifications # 16-120 (RFQ) for CHDOs on September 26, 2016, for affordable rental and ownership housing in Santa Ana. City Council received and filed the RFQ on September 20, 2016 prior to issuance. The purpose of the RFQ was to qualify and certify CHDOs in order to place them on an Approved CHDO List. Once placed on the Approved CHDO List, selected and approved CHDOs are able to utilize HOME CHDO funds based on the review, approval and selection of the City at its sole discretion for qualified and eligible projects until the funds are fully exhausted within a three-year deadline and/or the City has met its CHDO HOME commitment deadline for each fiscal year. Based on the new HOME rules, HOME commitments cannot occur until all financing for the project has been fully committed. The selected CHDOs will be responsible for contributing and securing additional funds as necessary, for acquiring the land, completing the improvements, and lease -up and operation of each project. The RFQ was placed on the City's website, published in a general circulation newspaper, and directly e-mailed to local housing developers who have previously shown an interest in affordable housing development projects. Three proposals were received by the deadline of October 28, 2016, and were reviewed by a panel based on HUD requirements and the RFQ requirements. Proposals were received by Jamboree Housing Corporation, American Family Housing, and Mercy House. All three proposers qualified as CHDOs and are being recommended by staff for certification and approval for utilizing the CHDO funds. A draft template agreement (Exhibit 1) is being provided only as a reference. This agreement would be executed by City staff with Jamboree Housing Corporation, American Family Housing or Mercy House as Community Housing Development Organizations after submission of a project to utilize HOME CHDO funds based on the review, approval and selection by the City at its sole discretion for qualified and eligible projects until the funds are fully exhausted. This recommended action will facilitate the capacity for these pre -qualified organizations to fully use the CHDO funds made available by the City because the template agreement will not require future consideration by City Council and thereby delay their ability to compete for single-family, duplex, or four-plex developments in the private market which have shorter escrow periods. The City has the following deadlines for these CHDO funds for commitment and expenditures. A commitment is a signed loan agreement after all other funding sources are committed, including Low Income Housing Tax Credits. 25C-2 Approved List of Community Housing Development Organizations February 7, 2017 Page 3 The HOME CHDO Commitment and Expenditure Deadlines are as follows: CHDO Funding Amount Availability Commitment Deadline Expenditure Deadline $161,006.10 Currently Available 07/31/2017 07/31/2020 $171,771.60 Currently Available 07/31/2018 07/31/2021 $171,771.60 * Available 07/01/2017 07/31/2019 07/31/2022 *Estimate for FY 2017 HOME CDHO Funds allocated by the U.S. Department of Housing and Urban Development (HUD). If the City does not award these available funds to one of the three prequalified organizations on the Approved List of Community Housing Development Organizations in a timely manner before July 30 of each fiscal year, the funds will be returned to the Federal government. The purpose of this recommended action is to utilize these funds for the community in an efficient and effective manner, in compliance with HUD's commitment deadlines listed above. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement and Sustainability, Objective #3 (facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods). FISCAL IMPACT Upon the City's approval of each project utilizing HOME CHDO funds, funds will be available in the HOME Program account (no. 13018780-69152). Robert C. Coptez Deputy City Ma_nager.._--'- City Manager's Office NV/JB APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director b Finance & Management Services Agency Exhibit: 1. Community Housing Development Organization Template Agreement 25C-3 25C-4 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Division Manager SPACE A13OVET S NEF RECORDING USE FREE RECORDING REQUESTED [Government Code Section 61031 LOAN AGREEMENT by and between the CITY OF SANTA ANA Dated: And (type of entity) Santa Ana, California) 1 25C-5 LOAN AGREEMENT HOME PROGRAM THIS LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of , is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation (referred to herein as "City") and a , with reference to the following: RECITALS: A. City has received an allocation of funds from the United States Department of Housing and Urban Development ("HUD") under the HOME Investment Partnership Program (the "HOME Program") (42 U.S.C. § 12701, et seq.,) to be used in accordance with applicable statutory requirements and regulations (the "HOME Regulations") (24 CFR Part 92); B. A portion of City's allocation of HOME Program funds is reserved for Community Housing Development Organizations (the "HOME Program/CHDO fiends"), and has qualified and is in good standing as a Community Housing Development Organization; C, Among the purposes of the HOME Program are (1) to expand the supply of decent, safe, sanitary, and affordable housing, with primary attention to rental housing, for very low-income and low-income Americans; and (2) to provide participating jurisdictions, on a coordinated basis, with the various forms of federal housing assistance, including capital investment, mortgage insurance, rental assistance, and other federal assistance, needed (a) to promote the development of partnerships among the federal government, states and units of general local government, private industry, and nonprofit organizations able to utilize all available resources to provide more of such housing, and (b) to expand the capacity of nonprofit Community Housing Development Organizations to develop and manage decent, safe, sanitary and affordable housing; D. Developer is the owner of that certain property commonly known as , within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property"). The loans referenced herein shall assist in the acduisition, new construction and/or rehabilitation of said Property that is improved for a multifamily or single-family residential housing development, E. Developer is on the City Approved list of Community Housing Development Organizations and has been certified and approved to utilize HOME Prograni/CHDO Funds, F. In furtherance of the HOME Program, Developer has applied to City for a loan with which to: 1. provide deeper affordability for a longer term, as well as acquire, construct and/or rehabilitate the Property, and 25C-6 2. thereafter to maintain, operate and professionally manage the Property as decent, safe, sanitary and affordable rental housing. G. City, on certain terms and conditions, desire to make such loan to Developer in order to make possible the acquisition, construction and/or rehabilitation of the Property, thereby eliminating blight while expanding the supply of decent, safe, sanitary and affordable housing. H. If there is any discrepancy between Federal and State guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. L The Loan Agreement and all of its attachments shall be enforceable by City in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City/HOME Loan Note and the City/HOME Deed of Trust provide a means of enforcement by the City if Developer is in breach of its obligations hereunder and thereunder, including liens on the Property, use and deed restrictions and covenants running with the land (24 CFR 92.504 (c) (13)]. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, City and Developer agree as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Project Documents, unless otherwise expressly defined, are defined where first used in this Agreement and/or as set forth in this Article 1, "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 92.252 and the rents governed by HUD. "Affordability Restrictions on Transfer of Property" means that certain document affecting real property benefiting the City, attached hereto as Exhibit G. "Affordable Rent" means the monthly rents that are set forth in more detail in Section 7 of this Agreement. "Building Permit" means the building permit(s) issued by City and required for the constriction and/or rehabilitation, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from .January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. 3 25C-7 °°CHDO" means Community Housing Development Organization under the HOME Program. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City/HOME Loan" means the loan to be made to Developer by City from HOME finds pursuant to Article 5 of this Agreement. "City/HOME Loan Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit E, to be executed by Developer pursuant to Section 5.13.2 in order to secure the Loan Note. "City/HOME Loan Note" means that certain promissory note in the original principal amount of $ , in the fonn attached hereto as Exhibit P, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the City/HOME Loan. "Close of Escrow" shall mean the date upon which the City/HOME Loan Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Developer's Escrow account for the purchase and sale of the Property pursuant to the Purchase Contract, "County" means the County of Orange, California. "Developer" means successors and assigns. its "Developer's Representative" shall mean the Chief Execrative Officer of the Administrative General Partner of Developer or his/her designee. "Escrow" means Escrow No. "Escrow Holder" means The Escrow Officer is "Event of Default" has the meaning set forth in Section 20.1. "Executive Director" means the Executive Director of the Community Development Agency, or his/her designee. "Extremely Low Income" an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 25C-8 "General Partner(s)" means the General Partners of Developer, and their respective successors and assigns. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sM., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.&C. §§ 9601, et seq., as amended. "HOME Compliance Period" is for a period of fifteen (15) years. "HOME Program" has the meaning set forth in Recital "A" above. "HOME Regulations" has the meaning set forth in Recital "A" above. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting), "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (e) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and ( d) all recourse and all non -recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth. in Section 14.5. "Laws" rnems all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). 5 25C-9 "Limited Partner" means the Limited Partners of Developer, and their successors and assigns. "Loan Documents" means, collectively, this Agreement, the City/HOME Loan Note, the City/HOME Deed of Trust, the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMI". "Partnership Agreement" means the Agreement of dated as said Partnership Agreement may be amended from time to time. "Permitted Encumbrances for the Affordable Housing Restrictions" means, collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Permitted Encumbrances for the City Loan Deed of Trust" means, collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Project" means the acquisition, new construction and/or rehabilitation of the Property by Developer pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached hereto as Exhibit C, as modified from time to time in accordance with this Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the Property that is located at within the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Senior Lender" means or any other holder of the Senior Loan Note(s). 6 25C-10 "Senior Loan" shall mean the senior loan being made by Senior Lender concurrent to the City Loan for payment of a portion of the aoeuisition, new construction and/or rehabilitation costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Senior Loan Deed of Trust" means the deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from Senior Lender, "Term" the terns and conditions contained herein shall remain in effect for fifty-five (55) years. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 1.2 Singular and Plural Terms, Any defined term used in the plural in this Agreement or any other City Loan Document shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 References and Other Terms. Any reference to this Agreement or any Loan Document shall include such document both as originally exeouted and as it may from tinge to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The tern "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms 'including" and "include" mean "including (include) without limitation." 1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. [RESERVED] 7 25C-11 SCOPE OF WORK/ PROJECT BUDGET A "Scope of Work" for the Property is attached hereto as Exhibit B. Any material change to the Scope of Work requested by the Developer shall be subject to the prior written approval of the Executive Director. A line -item budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit C (the "Project Budget"). Any material change to the Project Budget requested by Developer shall be subject to the prior written approval of the Executive Director. 4. [RESERVE' DI 5, LOANS A. CITY LOAN: 1. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan of HOME fiends to Developer in the principal amount of up to $ (the "City Loan") for the new construction and/or ac uisition and ,rehabilitation of the Property. 2. City/HOME Note and Deed of Trust. The City/HOME Loan shall be evidenced by the City/HOME Loan Note in the form attached hereto as Exhibit E. The City Loan shall be secured by the City/HOME Loan Deed of Trust in the form attached hereto as Exhibit E. The City/HOME Deed of Trust shall be a deed of trust encumbering the Property, subordinate to the Senior Loan(s) made to Developer. 3. City/HOME Loan Terms. The terms and conditions of the City/HOME Loan are as set forth in the City/HOME Loan Note which is a residual receipts note. The HOME compliance period is fifteen (15) years, commencing on the date that all work is complete and the Property is fully occupied. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent, City's obligation to disburse the Loan Amount is subject to the satisfaction, or waiver by the Executive Director, of the following conditions precedent: ( a) Loan Docuunents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signature(s) acknowledged where necessary, each of the following documents: (i) the Loan Agreement; (ii) The City/HOME Loan Note; 25C-12 (iii) The City/HOME Deed of Trust, (iv) The Affordability Restrictions on Transfer of Property; and (b) Title Insurance. City shall have received an LP-10 ALTA Lender's loan policy of title insurance (2006 edition), or evidence of a commitment therefore satisfactory to City, issued by First American Title Insurance Company and in form and substance satisfactory to City, together with all endorsements and binders required, naming City as the insured, in a policy amount of not less than the City/HOME Loan Amount, showing Developer as the fee owner of the Property and insuring the City/HOME Deed of Trust to be valid priority liens on the Property. The City/TOME Loan Note and Deed of Trust shall be subordinate to the Senior Loan Note and First Deed. (c) Affordability Restrictions on Transfer of Property. Developer shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit G, the Affordability Restrictions on Transfer of Title pursuant to which, among other things, Developer agrees that the Property shall be used only for decent, safe, sanitary and affordable rental housing pursuant to the affordability requirements of Code of Federal Regulations ("CFR") section 92,252 or 92.254 and California Health and Safety Code ("H&S") sections 50052,5, as applicable. (d) Documents Recorded. This Loan Agreement, the City/HOME Loan Deed of Trust and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. (e) Request for Notice For the benefit of City, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default"), (1) Insurance. City shall have received evidence satisfactory to the City Attorney that all of the policies of insurance required by Section 19 of this Agreement are in Rill force and effect. (g) Representations and warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct as of the Close of Escrow as though made on and as of that date, and if requested by the Executive Director, City shall have received, a certificate to that effect signed by Developer's Representative. (h) No Default. No Event of Default by Developer shall have occurred, and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer under this Agreement, and if requested by the Executive Director, City shall have received a certificate to that effect signed by Developer's Representative. 9 25C-13 6.2 Disbursement Procedures for Loan. A portion of the Loan proceeds shall be disbursed through Escrow to finance the acquisition of the Property, with other proceeds being used for the construction and/or rehabilitation (as evidenced in Exhibit Q. The Loan proceeds shall not be used for any purpose other than for acquisition costs of the Property and/or rehabilitation/construction costs, including a Developer fee and soft; costs related to development of the Project (costs all subject to City's prior review). The City allows for eligible costs to be paid by HOME loan funds that were incurred not more than 24 months prior to the HOME funds commitment date of this loan agreement in accordance with HOME regulations. 6.3 First Disbursement. Agency/City's obligation to make the first disbursement of the Construction and/or Rehabilitation Portion is subject to satisfaction of the following conditions precedent: (a) General Contractor, If the Executive Director has not yet approved the General Contractor, the Executive Director shall have approved the identity and qualifications of the General Contractor. (b) Construction/Rehabilitation Contract. If the Executive Director has not yet approved the Rehabilitation Contract, the Executive Director shall have approved the Rehabilitation Contract. (c) Relocation Plan. If the relocation of any existing tenants is contemplated by the parties, the Executive Director shall have approved a plan for the relocation of such tenants of the Property determined by the Executive Director to be eligible for relocation assistance. 6.4 Termination for Failure of Condition. If (a) any of the conditions set forth herein are not timely satisfied or waived by the Executive Director, and (b) Agency/City is not in default under this Agreement, Agency/City may terminate this Agreement without any further liability on its part by giving written notice of termination to Developer. Upon the giving of such notice, all principal, interest and other amounts owing under the Agency/City Loan Note(s) shall be immediately due and payable, regardless of any other specified due date. 6.5 Any Disbursement. City's obligation to make any disbursement of the Construction/Rehabilitation Portion (including the first and final disbursements) is subject to the satisfaction of the following conditions precedent: (a) Satisfactory Progress. The Executive Director shall be satisfied, based on his/her own inspections or other reliable information, that the construction/rehabilitation is progressing satisfactorily in conformance with all applicable laws and other requirements (including HOME regulations). (b) Condition of Title. Either (i) the Executive Director reasonably believes that no event has occurred since the Close of Escrow that would give rise to a 10 25C-14 colorable claim against the Property (e.g., a mechanic's lien) superior to the claim of City against the Property with respect to the subject disbursement, or (ii) City must have received, at Developer's expense but payable out of the Construction/Rehabilitation Proceeds, from the title insurer who issued City's LP-10 Title Policy, all endorsements thereto then reasonably required by City. (o) Revresemations and Warranties. The representations and warranties of Developer contained in this Agreement and the other City Loan Documents shall be correct as of the date of the disbursement as though made on and as of that date. (d) No Default, No Event of Default by Developer shall remain uncured and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer. 6.6 Final Disbursement. City's obligation to disburse that portion of the construction/rehabilitation portion retained pursuant to Section 6,12 is subject to the satisfaction of the following additional conditions precedent: (a) Construction/Rehabilitation Complete. The construction/rehabilitation shall be complete. (b) Certificate of Occupancy Issued. Any portion of the coustruction/rchabilitation requiring inspection or certification by any Govermnental Authority shall have been inspected and certified as complete. Developer shall request that the Building Department issue a Certificate of Occupancy, a copy of which shall be delivered to the Executive Director, in order for final disbursement to occur. (c) Lien Free. At least one of the following shall have occurred: (i) Thirty-five (35) days shall have passed since the recording of a valid notice of completion for the construction/rehabilitation, and no mechanic's or material man's lien shall be outstanding; or (ii) Ninety-five (95) days shall have passed since actual completion of the rehabilitation and/or construction, and no mechanic's or materialman's lien shall be outstanding, or Developer shall have bonded over any such lien to City's reasonable satisfaction. 6.7 Waiver of Conditions. The conditions set forth pertaining to City's obligation to make disbursements of the rehabilitation or construction portion are for City's benefit only and the Executive Director may waive all or any part of such rights by written notice to Developer. 6.8 Disbursement Requests. The construction or rehabilitation proceeds shall be disbursed on a line -item by line -item basis in accordance with the Project Budget acid subject to the conditions in this section. In no event shall City have any obligation to disburse any amount for any itern in excess of the amount allocated to such item in the 11 25C-15 Project Budget. Disbursements shall be made only upon Developer's written request in the form of a Disbursement Request showing all costs which Developer intends to fund with such disbursement, itemized in such detail as City may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to City, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b ) all other documents and information reasonably required by City. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by City of proceeds of the City Loan, Borrower shall deliver to City and to Senior Lender a draw request ("Draw Request"), and all required supporting information as set forth in the Loan Documents or as otherwise reasonably required by City or Senior Lender in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. City and Senior Lender shall notify the other and Borrower of approval or disapproval of each Draw Request within five (5) business days after receipt of the Draw Request, using the Senior Lender's "Disbursement/Change Order Approval Notice". City and Senior Lender shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request, 6.9 Manner of Disbursement. City may make any disbursement by check payable to Developer; or on a voucher basis; or by check payable jointly to Developer and any contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by City. Disbursement will be made fifteen (15) days from approval. 6.10 Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by City or Developer to be required to complete all matters included in any line item in the Project Budget exceeds the amount allocated to that line item in the Project Budget, (b) construction/rehabilitation costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the construction/rehabilitation portion is or may be insufficient to pay all construction/rehabilitation costs that maybe payable under the City Loan Documents or otherwise in connection with the construction/rehabilitation, Developer shall, within ten (10) days after it receives written notice thereof from City of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to City that Developer has previously paid such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost") with funds from a source other than the City Loan; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Project Budget; provided, however, that the Executive Director's consent to any such reallocation shall be required; or 12 25C-16 (c) deposit an amount equal to the Excess Cost in a non -interest bearing account (the "Overrun Account") with City from which withdrawals may be made only with the consent of the Executive Director but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Project Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. City shall have no obligation to make further disbursements until Developer has paid or otherwise provided for the overrun as required above. Amounts deposited by Developer in the Overrun Account for any Excess Costs shall be disbursed by City prior to the disbursement of any remaining construction/rehabilitation portion proceeds in the manner described in subsection 9.3(c). 6.11 Cost Savings. Upon completion of and disbursement for all matters covered by any line items in the Project Budget, any remaining undisbursed amounts allocated to that line item shall be reallocated to "Contingency" and thereafter be available for disbursement in accordance with the terms of this Agreement. 6.12 Retainage. City will withhold a Retainage of 10% from each Disbursement for each of the hard cost line items of the project cost breakdown (and other line items thereof designated for withholding of retainage) until all conditions to the final disbursement of hard costs have been satisfied. In lieu of City's withholding Retainage, Developer can by written notice to City elect not to draw any overhead or profit as would otherwise be permitted tinder the Construction Contract until such time as Retainage would otherwise have been released. City shall not retain funds for building materials purchased by Developer for which Developer supplies documentation to City proving payment in full or for soft costs. 6.12.1 Holdback. The retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost (as determined by the Executive Director) for "punch -list" items. Such holdback will be released when all punch -list items have been completed to the satisfaction of City. 6.13 Waiver of Disbursement Conditions. Unless City otherwise agrees in writing, the making by City of any disbursement with knowledge that any condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made. 6.14 Modification of Disbursement Conditions and Procedures. The Executive Director shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the Construction or Rehabilitation Contract. 13 25C-17 6.15 Other Terms and Conditions of Loan. A. The Note shall become immediately due and payable, in the event of any of the following: (1) failure to complete the Project within four (4) years of the recording date; (2) HOME rental units must achieve initial occupancy within 18 months of project completion. (3) violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; (4) an Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement. 6 .16 Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 7.1 Use Covenants and Restrictions. A. Developer agrees and covenants, which covenants shall nun with the land and bind Developer, its successors, its assigns and every successor in interest to the Property that Developer will make all rental units on the Property available to low- or very low-income households at rents affordable to such households for fifty-five (55) years from the effective date of this Agreement. The HOME restrictions for the HOME assisted units shall be enforced until the date that is fifteen (15) years after the date on which the City reports the Project as complete to the Department of Housing and Urban Development. The City permits the Developer to limit the eligibility and/or give preference to a particular segment of the population in accordance with 24 CFR 92.253(d). B. The Project shall consist of units, including on -site manager's unit(s), of which there will be . There shall be HOME assisted units. If necessary depending on the number of units in the Project, the HOME assisted units shall be floating units and shall be distributed throughout the complex with comparable amenities to the other units. The affordability mix for the Project is as follows: 14 25C-18 Unit Tvoe AMI Level # of Units 30% AMI _ 50% AMI 30% AMI 60% AMI Manager Unit C. At initial lease up, households in the HOME assisted units cannot earn more than 50% of AMI, however existing tenants at the Property who are otherwise eligible under the HOME Program may continue their tenancy at the Property. Rental increases shall be in conformance with federal and state law. After the fifteen (15) year HOME compliance period, the City shall require that the units remain affordable, with rents calculated based on assumed household size at the same income levels. D. All of the HOME units will be restricted to occupancy by C %) of the Area Median Income (AMI). Current residents whose incomes exceed (_%) of the AMI will be increased to either (__%) percent of their monthly household income or market rent for the neighborhood, whichever is lower. E. Maximum Occupancy will be two (2) people per room plus one (1). Example for a two - bedroom unit, five (5) people would be maximum occupancy, F. Affordable rents shall be governed by California Health and Safety Code Sections 50052.5 and 50053(b)(2), and as provided in the HOME Regulations 24 CFR section 92.2. G. Developer must have a written lease between tenant and owner for a period of at least one year, unless a shorter period is mutually agreed upon. Leases must be consistent with HOME Regulations 24 CFR section 92,209(g). H. Rents During Construction/Rehabilitation: (a) All HOME resits shall be charged not more than the Low HOME rent, as amended from time to time (currently $ for a unit and $ for a unit). 7.2 Affordable Gross Starting Rents (Less Reasonable Utility Allowance); Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and incorne tables as published by HUD. A. HOME Assisted Units ## of Units Max Gross Monthly Rent 15 25C-19 (1) In no event shall the rent charged to the HOME assisted tenants be more than that amount of the low rent as published by HUD, as amended from time to time. (2) Utility allowances must be deducted from the Maximum Gross Monthly Rent. The Housing Authority of the City of Santa Ana publishes the Utility Allowance Schedule. (3) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME assisted units. (4) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of assisted units, including HOME - assisted units, to verify compliance with affordability requirements. For the HOME units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. 7.3 Rent Increases: On an annual basis, the City shall provide the Developer with the maximum allowable schedule of rents for the Property. In no event can Developer charge any tenant more than such amount. 7.4 Prohibited Fees, The Developer and subsequent owner is prohibited from charging fees that are not customary, consistent with HOME Regulations 24 CFR section 92.504(c)(3)(xi). The Developer and subsequent owner can charge reasonable application fees to prospective tenants; other fees only to the extent that they are reasonable and customary for the project area; and fees for services provided to tenants, provided that these services are not mandatory. 7.5 Maintenance of the Property. Solely at Developer's expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from the City, unless such condition cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure, the City may perform the necessary maintenance and Developer shall pay all reasonable costs incurred for such maintenance. The City shall inspect the Property annually after the date of issuance of the Certificate of Completion as described in Article 17 of this Agreement. During the affordability period, the Property must meet all applicable State and local codes. The Property must be free of all health and safety defects during the affordability period. 7.6 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, mental or physical disability, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure 16 25C-20 or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement, 8, DEFAULTS AND REMEDIES 8.1 Event of Default. Failure or delay by either party to perform any term of provision of this Agreement within the time periods provided herein for such performance constitutes a default under the Agreement. If any party defaults in perfornance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with this section, The injured party shall give written notice of default to the party in default, specifying the default complained of by the inj aced party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the City shall have the right to terminate this Agreement by delivery of written notice of termination to Developer, 9.2 Institution of Legal Actions. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement, 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.4 Damages. In the event that the City is liable for damages to Developer, such liability shall not exceed costs incurred by the Developer in the performance of this Agreement and shall not extend to compensation for loss of future income, profits or assets; provided, however, Developer's only remedy for any breach of this Agreement by the City shall be an action for specific performance of such party's obligations. 8.5 N_ourecourse Liability. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, or the attached Note and Deed of Trust, and any judgment, decree or order for the payment of money obtained in any action to enforce the obligation of Developer to repay the loan evidenced by such documents shall be enforceable against Developer only to the extent of Developer's interest in the Property. 17 25C-21 9, GENERAL PROVISIONS AND WARRANTIES As a material inducement to City to enter into this Agreement, Developer represents and warrants as follows: 9.1 Formation, Qualification and Compliance. the managing general partner of Developer (a) is a non-profit public -benefit corporation, validly existing and in good standing under the laws of the State of California, (b) has all requisite authority to conduct its business and own and lease its properties, and (c) is qualified and in good standing in every jurisdiction in which the nature of its business makes qualification necessary or where failure to qualify could have a material adverse effect on its financial condition or the performance of its obligations under the Loan Documents. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 9.2 Execution and Performance of Loan Documents. 921 Developer has all requisite authority to execute and perform its obligations under the Loan Documents. 9.2.2 The execution and delivery of Developer of, and the performance by Developer of its obligations under, each Loan Document has been authorized by all necessary action and does not and will not: (a) require any consent or approval not heretofore obtained of any person having any interest in Developer; (b) violate any provision of, or require any consent or approval not heretofore obtained Linder, any articles of incorporation, by-laws or other governing document applicable to Developer; (c) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the City Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (d) violate any provision of any law presently in effect; or (e) constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or document to which Developer is a party or by which Developer or any of its property is bound. 9.2.3 Developer is not in default, in any respect that is materially adverse to the interests of City Linder the Loan Documents or that would have any material adverse effect on the financial condition of Developer or the conduct of its business, 18 25C-22 under any law, contract, lease or other agreement or document described in sub- paragraph (d) or (e) of the previous subsection. 9.2.4 No approval, license, exemption or other authorization from, or filing, registration or qualification with, any Governmental Authority is required which has not been previously obtained in connection with: (a) the execution of Developer of, and the performance by Developer of its obligations Linder, the Loan Documents; and (b) the creation of the liens described in the Loan Documents, 9.3 Financial and Other Information. To the best of Developer's knowledge, all financial information furnished to City with respect to Developer in connection with the Loan (a) is complete and correct in all material respects as of the date of preparation thereof, (b) accurately presents the financial condition of Developer, and (c) has been prepared in accordance with generally accepted accounting principles consistently applied or in accordance with such other principles or methods as are reasonably acceptable to City. To the best of Developer's knowledge, all other documents and information furnished to City with respect to Developer, in connection with the Loans, are correct and complete insofar as completeness is necessary to give the City accurate knowledge of the subject matter. To the best of Developer's knowledge Developer has no material liability or contingent liability not disclosed to City in writing and there is no material lien, claim, charge or other right of others of any kind's (including liens or retained security titles of conditional vendors) on any property of Developer not disclosed in such financial statements or otherwise disclosed to City in writing. 9.4 No Material Adverse Change. There has been no material adverse change in the condition, financial or otherwise, of Developer since the dates of the latest financial statements furnished to City, Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to City in writing. 9.5 Tax Liability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawful extensions disclosed to City in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Developer is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to City. 9.6 Governmental Requirements. Developer is in compliance with all laws relating to the Property and all Governmental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Enviromnental Quality Act and the National Environmental Policy Act and the preparation and approval 19 25C-23 of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements, 9.7 Rights of Others. Developer is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.8 Litigation. There are no material actions or proceedings pending or, to the best of the Developer's knowledge, threatened against or affecting Developer or any property of Developer before any Governmental Authority, except as disclosed to City in writing prior to the execution of this Agreement. 9.9 Bankruptcy. To the best of Developer's knowledge, no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Developer, nor are any of such proceedings contemplated by Developer. 9.10 Information Accurate. To the best of Developer's knowledge, all information, regardless of its form, conveyed by Developer to City, by whatever means, is accurate, correct and sufficiently complete to give City true and accurate knowledge of its subject matter, and does not contain any misrepresentation or omission. 9.11 Conflicts of Interest. No member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she has a direct or indirect financial interest. The Developer warrants that it neither has paid nor given, nor will pay or give, any third party any money or other consideration for obtaining this Agreement. 9.12 Nonliability of City Officials and Employees, No member, official or employee of the City shall be personally liable to the Developer in the event of any default or breach by the City or for any amount which may become due to Developer or on any obligations under the terms of this Agreement. 9.13 No Assignment. Developer expressly acknowledges and agrees that the City has only agreed to assist the Developer as a means by which to induce the acquisition/rehabilitation/d'evelol)nent of the Property. Accordingly, Developer further expressly acknowledges and agrees that this Agreement is a personal right of Developer that is neither negotiable, transferable, nor assignable except as set forth herein. Developer may assign some or all of its rights under the Agreement only with the prior written consent of the Executive Director (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assignment by a limited partner of Developer to an affiliate, or as otherwise provided in the Deed of Trust. 9.14 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and state laws, 20 25C-24 9.15 Third Parties. This Agreement is made for the sole benefit of Developer and the City and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the City hereunder or arising from any default by Developer, nor shall the City owe any duty whatsoever to any claimant for labor performed or materials famished in connection with the construction/rehabilitation of the Property. 9.16 Control of Property. The parties acknowledge that the City has not at any time participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 10. CONDITIONS FOR CONSTRUCTION OR REHABILITATION 10.1 Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of Governmental Agencies required in connection with the construction/rehabilitation and conversion of the Property. 10.2 Commencement and Completion of Construction/Rehabilitation. The construction/rehabilitation shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by Govemiental Authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 10.3 Change Orders. The Construction/Rehabilitation Contract shall not be modified except pursuant to change orders. All change orders: (a) shall be in writing, numbered in sequence, signed by Developer and submitted to City prior to the proposed effectiveness thereof and accompanied by any working drawings and a written narrative of the proposed change. (b) Shall be subject to the Executive Director's and Bank's prior written approval of the Executive Director and Bank. 10.4 Entry and Inspection. At all times prior to completion of the construction/rehabilitation, upon reasonable notice, City and their agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the construction/rehabilitation are stored, (b) the right to inspect all labor performed and materials furnished for the construction/rehabilitation, and (c) the right to inspect and copy all documents pertaining to the construction/rehabilitation. 10.5 Compliance with Section 3 Clause. Section 3 of the Housing and Urban Development Act of 1968, 12 U.S.C. 1701u, as amended by Section 915 of the Housing and Community Development Act of 1992 requires that economic opportunities generated by HUD financial assistance for housing and community development programs be targeted toward low- and very low- income persons. Whenever HUD 21 25C-25 assistance generates opportunities for employment or contracting, state and local grantees, as well as other recipients of HUD housing assistance funds roust, to the greatest extent feasible, provide these opportunities to low- and very low- income persons and to businesses owned by or employing low- and very low- income persons. Section 3 applies to projects for which HUD's share of project costs exceeds $200,000 and contracts and subcontracts awarded on projects for which HUD's share or project costs exceeds $200,000 and the contract or subcontract exceeds $100,000. For purposes of this Section 3 Clause and compliance thereto, whenever the word "contractor" is used it shall mean and include, as applicable, the Developer, and its contractor and subcontractor(s), if any. The particular text to be utilized in any and all contracts of any contractor doing work covered by Section 3 shall be in substantially the form of the following, as reasonably determined by the City, or as directed by HUD or its representative, and shall be executed by the applicable contractor under penalty of perjury: "(a) The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 170lu ("Section 3"). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons [inclusive of Very Low Income Persons, Very Low Income Households, and Very Low Income Tenants served by the Project], particularly persons who are recipients of HUD assistance for housing. (b) The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are wider no contractual or other impediment that would prevent them from complying with the part 135 regulations. (c) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of notices in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number of job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of person(s) taking applications for each of the position; and the anticipated date the work shall begin. (d) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in 22 25C-26 violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. (e) The contractor will certify that any vacant employment positions, including training positions, that are filled (a) after the contractor is selected but before the contract is executed, and (b) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. (f) Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts." After the foregoing Section 3 Clause, there shall be a signature block for the contractor, as applicable, the following text shall be included immediately above the signature block: "The contractor/provider by his/her signature affixed hereto declares under penalty of perjury that contractor has read the requirements of the Section 3 Clause and accepts all its requirements contained therein for all of his/her operations related to this contract" To the extent applicable, the Developer shall comply and/or cause compliance with Section 3 Clause requirements for the Project. For example, when and if Developer or its contractor(s)/subcontractor(s) hire(s) full time employees, rather than volunteer labor or materials, Section 3 is applicable and all disclosure and reporting requirements apply. 10,6 Construction/Rehabilitation Information. From time to time during the course of the construction/rehabilitation, within ten (10) Business Days following City's written demand therefore, Developer shall furnish requested reports of project costs, progress schedules and contractors' costs breakdowns for the constntction/rehabilitation, itemized as to trade description and item, showing the name of the contractor(s) and/or subeontractor(s), and including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7 Protection Against Liens. Developer shall diligently file a valid Notice of Completion upon completion of the construction/rebabilitation, diligently file a notice of cessation in the event of a cessation of labor on the construction/rehabilitation for a period of thirty (30) days or more, and take all actions reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the City by any person furnishing labor or materials to the Property, Developer shall immediately give written notice of the same to City and shall, promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay and discharge the smile, (b) effect the release thereof by delivering to City a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as City may 23 25C-27 require to release City from any obligation or liability with respect to such stop notice or claim. 10.8 General Contractors who are Related Parties to the Developer. If the Project is developed with general contractors who are Related Parties to the Developer, the Developer must be audited to the subcontractor level by an outside auditing firm approved by the City. The Developer shall pay for the audit to the subcontractor level by an outside auditing firm. 11. FEDERAL (HOME PROGRAM) COVENANTS 11.1 CHDO. the managing general partner of Developer, represents and warrants that it qualifies and is in good, standing as a Community Housing Development Organization under the HOME Program. Developer hereby covenants and agrees to maintain such status throughout the term of this Agreement, and to provide the Agency and City with written documentation necessary to demonstrate maintenance of said status on an annual basis. 11.2 Oualification as Affordable Housing. As more particularly provided in the Affordability Restrictions on Transfer of Property, Developer shall use, manage and operate the Property in accordance with the requirements of 24 CFR 92,252 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.3 Tenant and Participant Protection. Developer shall comply with the requirements of 24 CFR 92.253, 11.4 [Intentionally Omitted] 11.5 Handicapped Accessibility. Developer shall comply with (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations at 24 CFR 8C governing accessibility of projects assisted under the HOME Program; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36 in order to provide handicapped accessibility to the extent readily achievable. 11.6 Use of Debarred. Suspended, or Ineligible Participants. Developer shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 11.7 Maintenance of Drug -Free Workplace. Developer shall certify that Developer will provide a drug -free workplace in accordance with 24 CFR 84.13. 11,8 Lead -Based Paint. Developer shall comply with the requirements of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846) and implementing regulations at 24 CFR 35, as applicable. 11.9 Affirmative Marketing, Developer shall implement and perform such affirmative marketing procedures and requirements for the Property (24 CFR 92.351) in 24 25C-28 compliance with the City's adopted Program (a copy of which is attached hereto and incur;• lied herein as Exhibit 11l. 11.10 Equal Opportunity and Fair I f oushig. Developer s!: )d carry out the eonstruclinn/rehabilitation its obligations under this Agreement in compliance \', ith all of the state anu 1udcral laws and regulaou:io- regarding equal opportunity and fan 1i:,utiing described in 2y e TR 92.350. 11.11 Property Standards. Developer shall caul u the Property to meet the 'lousing quality standards set forth in 24 CI--R ``'� ? 109, as well as ali :amlicable local, state and federal codes and ordinances, including zoning ordinances. Developer sball also cause the Piul>�,+y to meet the cunciat edition of the Model Lin ny Code published I,.I,y 11,e Council of American Ruilding Officials, 11,12 Displacement and Relocation. Developer acknowledges and agrees that, pursuant to 24 CPR 92.253 and consistent with the other goals and objectives of this part, City must ensure that it has taken all reasonable steps to minimize the displacement of persons as a result of the Project. Furthermore, to the extent feasible, residential tenants must be provided a reasonable opportunity to lease mid occupy a suitable, decent, safe, sanitary and affordable dwelling unit on the Property upon completion of the construction/rehabilitation. Developer agrees to cooperate fully and completely with City in meeting the requirements of 24 CFR 92.253 and shall take all actions and measures reasonably required by the Executive Director in connection therewith. All applicable state guidelines must also be followed. (a) Developer acknowledges and agrees to hire a Relocation Consultant I provide relocation services, pursuant to the Uniform Relocation Act and Real 'Property Acquisiti<m Policies Act of 1970 ("URA") and 24 CFR 92,253, (b) The City, Devclopt^r. and Relocation Consultant will meet periodically during the relocation to provide updates and review tenant files, including at Project approval and prior to final benefit calculations. The Developer and Relocation Consultant shall carry out activity in compliance with URA and the City's Acquisition and Relocation Policy and Procedures Manual ("Manual"). (e) The Developer and Relocation Consultant shall maintain accurate records and files pertaining to the temporary and permanent relocation of tenants, in accordance with URA and the City's Manual. (d) The Developer and Relocation Consultant shall provide all relocation and tenant files to the City once relocation is complete at the Project. 11.13 Other Program Requirements. Developer shall carry out each activity in compliance with all federal laws and regulations described in subpart H of 24 CFR 92, 25 25C-29 except that Developer does not assume City's responsibilities for environmental review in 24 CFR 92,352 or the intergovernmental review process in 24 CFR 92.359, 11.14 Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of funds under this Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the acquisition, construction and/or rehabilitation of the Property). The amount of each request shall be limited to the amount needed. 11.15 Eligible Costs. Developer shall use HOME Funds to pay costs defined as "eligible costs" pursuant to 24 CFR 92.206, 11.16 Records and Reports. Developer shall maintain and from time to time submit to City such records, reports and information as the Executive Director may reasonably require in order to permit City to meet the record keeping and reporting requirements required of it pursuant to 24 CFR 92.508. 11.17 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. Developer shall comply with the requirements and standards of 2 CFR 200. 11.18 Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth at 24 CFR 570.611, as well as state regulations pertaining to conflict of interest. 11.19 Monitoring. Developer shall allow the City to conduct periodic inspections of the HOME assisted units on the Property as required by the Program after the date of construction/rehabilitation completion, with reasonable notice, Developer shall cure any defects or deficiencies Found by the City while conducting such inspections within two weeks of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 11.20 Recertification of Tenant Income. (A) Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis, in accordance with HOME regulations and guidelines, Every fifth (5`h) year, Developer shall require new original income documents to be submitted by tenants. Tenants in HOME assisted units whose incomes no longer comply with federal income guidelines shall have their rents adjusted in accordance with federal HOME guidelines (24 CFR 92.252-92.253). (B) HOME assisted units continue to qualify as affordable housing despite a temporary non-compliance caused by increases in the incomes of existing tenants if actions satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance with this section until the non-compliance is corrected. 26 25C-30 11.21 Other HOME Program Requirements, Developer shall comply with all other applicable requirements of the HOME Program, 11.22 Controlling Covenants. If there is a discrepancy between State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 12, MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1 Maintenance, Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a businesslike manner; shall prudently preserve and protect its own as well as the City's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected; and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Property or of any other impairment of City's interests under the Loan Documents. Without limiting the generality of the foregoing, and except as otherwise agreed by City in writing from time to time, Developer shall promptly and faithfully perform and observe each of the following provisions: 12.1.1 Alterations and Repair. Developer shall not remove, demolish or materially alter any Improvement without City's prior consent, except to make non- structural repairs which preserve or increase the Property's value, and shall promptly restore, in a good and professional manner, any Improvement (or other aspect or portion of the Property) that is damaged or destroyed from any cause. 12.2 Compliance. Developer shall comply with all laws and requirements of Governmental Authority (including, without limitation, all requirements relating to the obtaining of Governmental Authority approvals), all Governmental Authority approvals and all rights of third parties, relating to Developer, the Property or Developer's business thereon. 12.3 Taxes and Impositions. Developer shall pay, prior to delinquency, all of the following (collectively, the "Impositions"): (a) all general and special real property taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges of every kind that are assessed upon the Property (or upon the owner and/or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non -governmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on City (other than City's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any Imposition in installments (together with any accrued interest). 27 25C-31 12.1.3.1 Right to Contest. Developer shall not be required to pay any Imposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to City's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair City's interests under the Loan Documents, and (c) Developer has furnished City with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 12.1.3.2 Evidence of Payment. Upon demand by City from time to time, Developer shall deliver to City, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to City. 12.1,3.3 Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, in accordance with 24 CFR 92.508. 12.4 Project Operating Account. Subject to the requirements of the Senior Lender, Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ("Project Operating Account"). Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Project Budget, as it maybe revised from time to time with City approval. Developer may make withdrawals from this account solely for the payment of project expenses (including, without limitation, funding reserves and the malting of debt service payments), project fees and permitted distributions to the partners of the Developer. Withdrawals from this account for other purposes may be made only with the prior written approval of the City. 12.5 Replacement Reserve Account, Developer must establish or cause to be established a segregated interest -bearing replacement reserve depository account ("Replacement Reserve Account") no later than sixty (60) days after the Certificate of Completion is filed. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with Developer's Budget, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the Project that are reasonably required to preserve the Project. Developer may not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the City. 13. NONDISCRIMINATION COVENANTS 13.1 Obligation to Refrain from Discrimination. Developer covenants and agrees that: 28 25C-32 A. In Use of Proper. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, mental or physical disability, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property. B. In Affordable Housing Restrictions. The foregoing covenant shall (a) be included in the Affordability Restrictions on Transfer of Property, (b) run with the land, and (c) remain effective for the term of the contract (for 55 years). C. In Employment. In construction/rehabilitation of the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, mental or physical disability, national origin, or ancestry. Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. D. In all Contracts. Developer shall cause the foregoing covenants to be inserted in all contracts for any work covered by this Agreement so that such provisions will be binding upon each contractor and subcontractor for the benefit of City, provided that the foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. 14. ENVIRONMENTAL MATTERS 14.1 Representation and Warranty. Except as disclosed in writing to the City, Developer has no knowledge (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous Materials, (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. 14,2 Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and environmental permits applicable to the Constru tion/Reliabilitation of the Property, (b) immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, (c) keep the Property free and clear of any environmental claims or liens imposed pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. 14.3 Presence of Hazardous Materials. Developer shall not, and shall not Pell -nit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in 29 25C-33 compliance with all applicable environmental laws and required in connection with the routine operation and maintenance of the Property. 14A Notice of Environmental Matters. Developer shall immediately advise City in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable environmental law, (if) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental Law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. 14.5 Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the City and their respective officers, directors, employees and agents (collectively the "lndemnitees ") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be incurred by, imposed on, or asserted against the lndemnitees directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property other than arising from the gross negligence, willful misconduct and/or illegal actions of any Indemnitee. 15, OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the City Loan Note or Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that Executive Director otherwise consents in writing: 15.1 Existence. Developer's Managing General Partner shall maintain its existence in good standing under the laws of the State of California, and Developer shall provide documentation of such status annually to the City. 15.2 Protection of Lien. Developer shall maintain the lien of the City Deed of Trust as a valid second priority deed of trust on the Property and take all actions, and execute and deliver to City all documents, reasonably required by City from time to time in connection therewith. 15.3 Notice of Certain Matters. Developer shall give notice to City, within ten (10) days of Developer's learning thereof, of each of the following: (a) any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $5,000; and any litigation or claim that might subject Developer or any general partner to liability in excess of $5,000, whether covered by insurance or not; 30 25C-34 (b) any dispute between Developer and a Governmental Authority relating to the Property, the adverse determination of which might materially affect the Property; (c) any change in Developer's principal place of business; (d) any aspect of the Improvements that is not in substantial conformity with the plans or code; (e) any Event of Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default; (f) any material default by Developer or any other party under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; (g) the creation or imposition of any mechanics' or materialmans' lien or other lien against the Property which might materially affect the Property; and/or (h) any material adverse change in the financial condition of Developer. 15.4 Further Assurances. Developer shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to City all documents, and take all actions, reasonably required by City from time to time to confirm the rights created or now or hereafter intended to be created under the Loan Documents; to protect and further the validity, priority and enforceability of the City Deed of Trust; to subject to the Deed of Trust any property intended by the terms of any Loan Document(s) to be covered by the City Deed of Trust or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder. Notwithstanding anything to the contrary set forth herein, the Developer shall have no obligation to execute any document, or take any action, which would (i) change a material term of any Loan Document, (ii) change or impair any material right of Developer and/or (iii) increase the liability of Developer or any partner thereof. 15.5 Annual Financial Statements. Developer shall deliver to City, within one hundred twenty (120) days after the end of each Calendar Year, (a) a certified public accountant reviewed balance shoot for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations in connection with the Property for such Calendar Year, together with all supporting schedules, (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements, and (c) a certificate of Developer's Administrative General Partner that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, 31 25C-35 (ii) fairly present Developer's Financial condition, (iii) show all material liabilities, direct and contingent, and (iv) fairly present the results of Developer's operations. Developer shall also provide the City with any other annual audit reports issued by other monitoring agencies. 15.6 Audits and Access to Records. Developer agrees that City, the U.S. Department of Housing and Urban Development, the Comptroller General of the United States or any of their authorized representatives shall have the right of access, upon reasonable notice, to any books, documents, papers, or other records of Developer which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the affordability period ends. 15.7 Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the City every fifth (5th) year beginning 16. OTHER NEGATIVE COVENANTS While any obligation of Developer under the City Note or City Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that Executive Director otherwise consents in writing: 16.1 Default on Senior Loan. Developer shall not default on any of the Senior Loan documents, provided however, that Developer shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2 Sale or Lease of Propertv. Unless and until Developer has received a Certificate of Completion for the construction/rehabilitatian from City, Developer shall not sell, lease, sublease or otherwise transfer all or any part of the Property or any interest therein without the prior written consent of the Executive Director, which consent maybe withheld in the Executive Director's reasonable discretion. In connection with the foregoing consent requirements, Developer aclmowledges that City relied upon Developer's particular expertise in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory completion of the construction/rehabilitation. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) a transfer of a General Partner's interest in Developer when made in connection with the exercise by the Developer's limited partner (the "Limited Partner") of its rights upon a default by a General Partner under the Developer's Partnership Agreement (the "Partnership Agreement") or upon a General Partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting General Partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to talce action to remove and substitute the General 32 25C-36 Partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the Managing General Partner pursuant to the right of first refusal or to the General Partners pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Developer. 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the construction/rehabilitation and upon the request of Developer, or at its own election, the City of Santa Ana shall issue a Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction/rehabilitation. If City declines to furnish a Certificate of Completion after written request from Developer, the Executive Director shall, within thirty (30) days after receipt of the request, provide Developer with a written statement of the reasons therefore, The statement shall contain a description of the action Developer must take to obtain a Certificate of Completion. If the reason therefore is that the Developer has not completed a minor portion of the Construction/Rehabilitation, City may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with City of a bond or other form of security acceptable to the Executive Director in the amount of the fair value of the uncompleted work. A Certificate of Completion is not evidence of compliance with or satisfaction of the Loan Documents or any obligation of Developer to any other party whatsoever, including any holder of a mortgage or deed of trust. A Certificate of Completion is not "notice of completion" referred to in Section 3093 of the California Civil Code. 18, INDEMNIFICATION 18.1 Nonliability of City. Developer acknowledges and agrees that: (a) The relationship between Developer and City is and shall remain solely that of borrower and lender, City neither undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter in connection with the constntction/rchabilitationi, including matters relating to: (i) the performance of the construction/rehabilitation work, (ii) architects, contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, or (iii) the progress of the construction/rehabilitation; and Developer shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by City in connection with such matters is solely for the protection of City and that neither Developer nor any third party is entitled to rely on it; (b) Notwithstanding any other provision of any Loan Document: (i) the City is not a partner, joint venture, alter -ego, manager, controlling person or other 33 25C-37 business associate or participant of any kind of Developer and City does not intend to ever assume any such status; (ii) City's activities in connection with the Loan(s) shall not be "outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and City does not intend to ever assume any responsibility to any person for the quality or safety of the Property; and (iii) City shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; (c) City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard thereon; and (d) By accepting or approving anything required to be performed or given to City raider the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 18.2 Indemnity Developer shall defend (by counsel satisfactory to City), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the making of the Loan(s); (iii) a claim, demand or cause of action that any person has or asserts against Developer; (v) any act or omission of Developer, any contractor, subcontractor or material supplier, engineer, architect or other person with respect to the Property; or (vi) the ownership, occupancy or use of the Property. Notwithstanding the foregoing, Developer shall not be obligated to indemnify City with respect to the consequences of any act of illegal conduct, gross negligence or willful misconduct of City. Developer's obligations under this Section shall survive the cancellation of the City Loan Note, release and reconveyance of the City Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement, 18.2.1 Nothwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result as the repayment of principal and/or interest under the Loan. 18.3 Reimbursement of City. Developer shall reimburse City immediately upon written demand for all costs reasonably incurred by City (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of City) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which City is indemnified under the Loan Documents, Such reimbursement obligations shall 34 25C-38 bear interest from the date occurring twenty (20) days after City gives written demand to Developer and shall be secured by the City Deed of Trust. Such reimbursement obligations shall survive the cancellation of the Loan Note, release and reconveyance of the City Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1 Policies Required. While any obligation of Developer under the Loan Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: (a) worker's compensation insurance and any other insurance required by law in connection with the construction/rehabilitation; (b) prior to commencement and following completion of the construction/rehabilitation, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (c) upon commencement of the construction/rehabilitation and at all times prior to completion of the construction/rehabilitation, builder's risk -all risk insurance covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (d) public liability insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000 for "single occurrence;" (e) property damage insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000; and (f) any other insurance reasonably required by City. All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to City. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form and substance satisfactory to City, showing the City as encumbrance. The City shall be named as an additional insured(s) in the policies required under subparagraphs (d) and (e) with primary coverage. Certificates of insurance for the above policies (and/or original policies, if required by City) shall be delivered within ten (10) days after demand 35 25C-39 therefore, and prior to start of any construction/rehabilitation work. All policies insuring against damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of co-insurance. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to City evidence of renewal or replacement of such policy reasonably satisfactory to City Attorney. 19.2 City Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section. 19.3 Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi -public use of any portion of the Property (collectively, "Condemnation"), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and/or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 19.4 Delivery of Proceeds to City. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender., deliver such proceeds to the City immediately upon receipt. 19.5 Application of Casualtv Insurance Proceeds. Any proceeds collected (the "Proceeds") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions") within ninety (90) days (unless extended by mutual agreement of Developer and City) following the occurrence of the damage for which the Proceeds are collected: (a) Developer shall demonstrate to City's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b)) will be adequate to repair the Improvements and to restore the fair market value of the Property, within two years (or such longer time period reasonably determined by City), to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City of (i) plans and specifications reasonably satisfactory to City, and (ii) a consnuction/rchabilitation contract in form and content, and with a contractor, reasonably satisfactory to City. (b) To the extent that the Proceeds are insufficient to accomplish the restoration required above, Developer shall deliver to City (the "Shortfall Funds") in the amount of such shortfall, which Rinds shall be assigned to City as security 36 25C-40 for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. (c) Developer shall execute such documents as City requires to evidence and secure Developer's obligation to use all amorurts disbursed for the diligent restoration of the Property. (d) No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds, Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall either be paid to Developer or applied by City against any obligations to City that are secured by a lien on the Property, as they elect in their sole and absolute discretion, 19.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within ninety (90) days (unless extended pursuant to Section 19.5) following the date on which the damage occurs, the Proceeds shall be applied by City against any obligations to City that arc secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by City in their sole and absolute discretion. 19.8 Restoration. Nothing in this Article 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 19.9 Condemnation: Treatment of Compensation. Subject to any superior rights of Senior Lender, Developer hereby assigns to the City, as security for all obligations to City secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation"). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of City, renders or is likely to render the Property not economically viable or if, in City's reasonable judgment Developer's security is otherwise impaired, City may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to City shall be paid to Developer or Developer's assignee. City shall have no obligation to take any action in connection with any acfard or threatened condemnation or other proceeding, 37 25C-41 19.9.1 Notwithstanding the foregoing, as long as the value of City's liens are not impaired, any condemnation proceeds may be used by the .Borrower for repair and/or restoration of the Project. 19.10 Waiver of Subrogation. Developer hereby waives all rights to recover against the City (or any officer, employee, agent or representative of the City) for any loss incurred by Developer from any cause insured against or required by any Loan Document, to be insured against; provided,,however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 20. DEFAULTS AND REMEDIES 20.1 Events of Default. The occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer: (a) Developer fails to make any payment of principal or interest under the City Loan Note when clue, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) Developer fails to perform any other obligation for the payment of money under any Loan Document, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such obligation was not performed when due; (c) Developer fails to perform any obligation (other than the obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such failure is not cured within thirty (30) days after Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30)-day period, such faihxre shall not be an Event of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to cure, and thereafter diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure to completion; (d) Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; (e) The Property is materially damaged or destroyed by fire or other casualty unless Developer fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within ninety (90) days (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; (fj Work on the construction/rehabilitation ceases for thirty (30) consecutive days for any reason (other than governmental orders, decrees or regulations, acts of God or any other deity, strikes or other causes beyond Developer's reasonable 38 25C-42 control), provided that the same do not, in the aggregate and in the City's reasonable judgment, threaten to delay the completion of the construction/rehabilitation beyond the required completion date set forth in this Agreement; (g) Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and/or occupying the improvements and such injunction or prohibition continues unstayed for sixty (60) days or more for any reason; (h) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the Executive Director's prior written consent; (i) Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Developer applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Developer and the appointment continues undischarged or unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, rehabilitation or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or 0) any of the Senior Loan documents is revolted or terminated, in whole or in part and for any reason (except due to repayment of such loans), without the Executive Director's prior written consent, or (ii) Developer defaults or otherwise fails to perform any of its duties or obligations under or in connection with any of the Senior Loan documents, subject to all applicable notice and cure periods, or (iii) any of the Senior Loan docmmnts is amended, supplemented or otherwise modified without City's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by Developer's Limited Partner shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer. 20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, City may, at its option and in its absoli to discretion, do any or all of the following: (a) By written notice to Developer, declare the principal of all amounts owing wider the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 39 25C-43 20.1 shall automatically, without notice or other action on City's part, cause all such amounts to be immediately due and payable; (b) In its own right or by a court -appointed receiver, take possession of (he Property, enter into contracts for and otherwise proceed with the completion of the construction/rehabilitation by expenditure of its own funds; (o) Exercise any of its rights under the Loan Documents and any rights provided by law, including, without limitation, the right to seek specific performance and the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as City elects in its sole and absolute discretion; and, (d) Suspend or terminate the award of HOME funds if Developer fails to comply with any term of that award. 20.3 Cumulative Remedies: No Waiver. City's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the City in the exercise of any other right or remedy, No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated, No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. The City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations; City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party'"' right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights. 21, MISCELLANEOUS 21.1 Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Developer, or any other claim by developer against City, in connection with the Loan or otherwise, Developer hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Developer's obligations under the Loan Docinnents, or (b) to claim that the existence of any such outstanding obligation, liability or claim excuses the nonperformance by Developer of any of its obligations under the Loan Documents. 21.2 Notices. All notices, demands, approvals and other communications provided for in the Loan Documents shall be in writing and be delivered to the appropriate party by personal service or U.S. mail at its address as follows: 40 25C-44 If to Developer: With a copy to: If to City: City of Santa Ana Executive Director (CDA) 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 With a copy to: City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non -receipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refasal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the Loan described herein and have been or will be relied on by City notwithstanding any investigation made by either party. 21.4 No Third Parties Benefited, This Agreement is made for the purpose of setting forth rights and obligations of Developer and the City, and no other person shall have any rights hereunder or by reason hereof. 21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall imue to the benefit of, Developer and City and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Developer shall not assign any of its rights or obligations under any Loan Document without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Any such assignment without such consent shall, at City's option, be void. 21.6 Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the City and Developer with respect to the Loan and the Property, and all prior negotiations, 41 25C-45 understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 21.7 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the Comity of Orange or the United States District Court of the Central District of California, as City may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Developer also waives any objection regarding personal or in rem jurisdiction or venue. 21.8 Severability of Provisions. No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable. 21.9 Headings. Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents, 21,10 Conflicts. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, this Agreement, unless otherwise expressly provided, shall prevail; provided however that, with respect to any matter addressed in both such documents, the fact that one document provides for greater, lesser or different rights or obligations than the other shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed. 21.11 Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 21.12 Conflict of Interest. No member, official or employee of the City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 21.13 Warranty Against Payment of Consideration. Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 21.14 Nonliability of City Officials and Employees. No member, official or employee of City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Developer or successor, or on any obligation Linder the terms of this Agreement. 42 25C-46 21.15 Plans and Data, Where Developer does not proceed with the work and constructiordrehabilitation of the Property, and when this Agreement is terminated with respect thereto for any reason, Developer shall deliver to City any and all plans and data concerning the Property, and City or any person or entity designated by City shall have the right to use such plans and data without compensation to Developer. Such right of City shall be subject to any right of the preparer of the plans to their use, 21.16 Authority to Enter Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 43 25C-47 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date set forth at the beginning of this Agreement. DEVELOPER By: By: Dated: MANAGING GENERAL PARTNER 1-2 m Dated; 44 25C-48 ATTEST: Maria D, Huizar Clerk of the Council Dated: APPROVED AS TO FORM: SONIA R.,OAV-NLHO, City Attorney 51 Attorney Dated: RECOMMENDED FOR APPROVAL: Robert C. Cortez Deputy City Manager CITY OF SANTA ANA Gerardo Mouet Acting City Manager Dated: 45 25C-49 EXHIBITS Exhibit A —SAMPLE Legal Description Exhibit B — SAMPLE Scope of Work Exhibit C — SAMPLE Project Budget (Sources and Uses) Exhibit D — SAMPLE Schedule of Performance Exhibit E — City/HOME Loan Deed of Trust Exhibit F — City/HOME Loan Note Exhibit G — Affordability Restrictions on Transfer of Property Exhibit H — SAMPLE Affirmative Marketing Program Guidelines Exhibit I — SAMPLE Form of Residual Receipts Exhibit J - Rehab Standards 25C-50 .xh'ib'lt A SAMPLE Legal Description 25C-51 EXHIBITA LEGAL DESCRIPTION All that certain real property situated in the County of Orange, State of California, described as follows: PARCEL 1: THAT PORTION OF LOT 14 OF THE MABURY TRACT, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AB SHOWN ON A MAP RECORDED IN BOOK 36, PAGE 65 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF PARCEL 1, AS SHOWN ON A MAP THEREOF FILED IN BOOK 30, PAGE 7 OF PARCEL MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL 1, NORTH 0° 16' 13" WEST 324.91 FEETTO THE NORTHEAST CORNER THEREOF; THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL 1, SOUTH 89° 36' 54" WEST 200.00 FEET; THENCE PARALLEL WITH THE EASTERLY LINE OF SAID PARCEL 1, SOUTH 0° 16' 13" EAST325.26 FEET TO THE CENTER LINE OF FIRST STREET, AS SHOWN ON SAID PARCEL MAP, BEING ALSO THE SOUTHWEST CORNER OF SAID PARCEL 1; THENCE ALONG THE SOUTHERLY LINE THEREOF, NORTH 89° 30' 48" EAST 200.00 FEETTO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION THEREOF INCLUDED WITHIN THE LINES OF FIRSTSTREET, AS SHOWN ON A MAP THEREOF FILED IN BOOK 30, PAGE 7 OF PARCEL MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. ALSO EXCEPTING THEREFROM ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES LYING BELOW A DEPTH OF 500 FEET FROM THE SURFACE OF SAID LAND, BUT WITHOUTTHE RIGHT OF ENTRY UPON ANY PORTION OF THE SURFACE ABOVE A DEPTH OF 500 FEET, TO TAKE, MARKET, MINE, EXPLORE OR DRILL FOR SAME, AS RESERVED IN THE DEED RECORDED JANUARY 15, 1970 IN BOOK 9191, PAGE 366 OF OFFICIAL RECORDS. PARCEL 2: AN EASEMENT FOR A COMMON DRIVEWAY INCLUDED WITHIN A STRIP OF LAND 1S.00 FEET WIDE, OVER THAT PORTION OF LOT 14 OF THE MABURY TRACT, IN THE CITY OF SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 36, PAGE 65 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, THE EASTERLY LINE THEREOF DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF PARCEL 1 OF SAID PARCEL MAP DESCRIBED ABOVE, THENCE NORTHERLY ALONG THE WESTERLY LINE THEREOF, 305.00 FEET. EXCEPTING THEREFROM THAT PORTION THEREOF INCLUDED WITHIN THE LINES OF FIRST STREET, AS SHOWN ON A MAP FILED IN BOOK 30, PAGE 7 OF PARCEL MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. Assessor's Parcel Number:400-091-17 25C-52 Exhibit B -SAMPLE m 0 0 � 0 mm 760� 1 0 25C-53 SUMMARY OF REHAB WORK 2151,E. First Street Santa Ana, CA SITE & BUILDING EXTERIOR • Re -surface asphalt paving. • Replace sidewalks. • Replace patio and front yard landscaping and Irrigation system. • Install patio furnishings. + Repair existing stairs and railing. • Replace coating on balconies, • Install new accessible mailboxes. Install new signage. • Install new doors. • Replace material on mansard walls. • Remove brick veneer on exterior walls. INTERIOR • Reconfiguration Into a 72-unit complex. • Paint all units. • Install new ADA flooring, • Install new bathroom accessories. • Install new cabinets. • Install new windows and window coverings. • Install new doors. • Remodeling of office and community room. 25C-54 Exhibit C -SAMPLE (Sources and Uses) 25C-55 25C-56 TCAC/CDIAC App/Allocatlon/Monitoring Fees 43,892 43,892 43,892 Environmental Audlt 40,000 40,000 40,000 Local Development Impact Fees 402,830 208,033 194,797 402,830 Permlt Processing Fees 100,000 100,000 100,000 Capital Fees _ Marketing 20,000 20,000 20,000 Furnkhings 126,000 126,000 126,000 Market Study 51500 51500 5,509 Accounting/Relmbursables , Soft Coat Contingency 69,221 69,221 69,221 Other; Relocatlon 360,000 3130,000 360,000 Other: Survey 13,500 13go 13,500 Other: CDLAC Performram Deposit 75,000 75,000 75,000 Other: Other: Other, Other: Total Other Costs 1,255,943 208,033 1,047,910 1,255,945 SUBTOTAL PROJECT COST 15,982,098 1,199,869 6,713,276 1,738,42D 6,330,633 25,9 221098 d6VE40FEP GO$TS ;:77 Developer Overhead/ProFlt 2,122,988 1,496,561 626,427 2,122,988 Consultant/Processing Agent Project Administratlon , Broker Fees Paid to a Related Party Coast. Oversight by Developer 60,000 6B4O00 6B4O00 Other, (Speclfy) _ Total OBVelapaY Crisis 2,190,988 1,564,561 626,427 2,290,988 TOTAL PROJECT COST5 18,173,086 1,199,869 7,719,170 1,739,420 7,895,194 626,427 18,173,086 25C-57 Schedule of 25C-58 EXHIBIT D Schedule of Performance GUEST HOUSE - SANTA ANA PROJECT TIMELINE 6/3/16 City Council CUP Approval Oct-15 Property Acquisition Dec-15 Project Based Vouchers Award Mar-16 HOM E Funds Application Mar-16 4% LIHTC+Tax Exempt Bond Application May-16 4% Federal +Tax Exempt Bond Award 7/22/16 Formal Commitment of HOME Funds 7/25/16 Construction Commence/ LP Closing 11/15/16 Anticipated Construction Completion 7/15/17 100% Occupancy 8/15/17 Perm Loan Closing (Conversion) 12/17/17 8609s 1/16/18 Federal Tax Credit Equity 6,713,176 Tax Exempt Permanent Loan - Tranche A (Tenant)- 1,738,420 Tax Exempt Permanent Loan - Tranche B (Voucher) 7,895,194 HOME Loan 1,199,869 Developer Deferred Fees 626,427 TOTAL 18,173,086 Acquisition Costs 6,824,125 Direct Construction Costs 5,663,049 Construction Contingency 566,305 Indirect and Soft Costs 1,759,631 Developer Fee 2,122,988 Financing Costs 622,145 Project Reserves 614,844 TOTAL 18,173,086 Fed Tax Credit Equity Pricing 1,07 4% Credits to Investor 6,273,996 Acquisition Bridge Loan 6,482,919 Tax Exempt Construction Loan 13,958,579 ## of LIHTC / PBV Units 71 ## of Non-LIHTC/PBV Manager Units 1 Total Units 72 25C-59 Exhibit E - City/HOME Deed of Trust 25C-60 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Development Agency City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M-26) Santa Ana, California 92702 Attn: Housing Division Manager CITY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS CITY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "City Deed of Trust") made this _ day of , 2017 by , a (the "Truster"), a (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the "Beneficiary"). Truster, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this City Deed of Trust; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Truster the right, prior to any default by'frustor in payment of the indebtedness secured by this City Deed of Trust or in the performance of any agreement under this City Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and 25C-61 occupancy of such buulding or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any mamier; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a promissory note to the Beneficiary executed by Trustor of even date herewith in the principal amount of ($ ) (the "City Loan Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Loan Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this City Deed of Trust; and the performance of the covenants and agreements of Truster contained herein, TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Loan Agreement. This City Deed of Trust is executed and delivered, along with the City Loan Note acid the Loan Agreement, to benefit the Property. A copy of said Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor acknowledges that but for the execution of this City Deed of Trust, the Beneficiary would not enter into the Agreement or City Loan Note secured by this City Deed of Trust. 2. Trustofs Estate, Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this City Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase, construction and/or rehabilitation of the Property. 3, Repayment of the Loan. Truster will promptly repay, when due, the principal and interest, as required by the City Loan Note secured by this City Deed of Trust. 4. Subordination, This obligation secured by this City Deed of Trust shall be subordinated to the Senior Loan and to the City Deed of Trust and Note, 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Truster shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Truster's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security 2 25C-62 which may attain a priority over this Deed of Trust, by Truster making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Truster will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Truster will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of aiy senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, Truster will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor, The Beneficiary shall receive 30 days advance notice of cancellation of any insuranoe policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this City Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this City Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneflciary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this City Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 3 25C-63 8. Protection of the Beneficiary's Security. If Truster fails to perform the covenants and agreements contained in this City Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the City Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a banlmipt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Truster, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs, Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this City Deed of Trust. Unless Truster and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the City Loan Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible trader applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this City Deed of Trust. 11, Remedies Cumulative, All remedies provided in this City Deed of Trust are distinct and cumulative to any other right or remedy under this City Deed of Trust or any other doctumnt, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12, Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the tights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Truster subject to the provisions of this City Deed of Trust. 13. Joint and Several Liabiliiv. All covenants and agreements of Truster shall be joint and several. 14, Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Tnistor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at (b) any notice to the Beneficiary will 25C-64 be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O, Box 1988, Santa Ana, California 92702, Attention, Housing Division Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at Notice shall be effective as of the date received as shown on the return receipt. 15, Governing. This City Deed of Trust shall be governed by the laws of the State of Califonria. 16. Severability. In the event that any provision or clause of this City Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this City Deed of Trust or the City Loan Note which can be given effect without the conflicting provision, and to this end the provisions of the City Deed of Trust and the City Loan Note are declared to be severable. 17. Captions. The captions and headings in this City Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18, Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Truster in this City Deed of Trust or the City Loan Note secured by this City Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this City Deed of Trust, the Beneficiary may declare all sums secured by this City Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Truster as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Truster shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this City Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Trustor to acceleration and sale, Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Truster's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Truster's Agreement of Limited Partnership agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Trustor pursuant to the right of first refusal or to the general partners of Trustor pursuant to the 5 25C-65 purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership .Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Trustor, provided that after any such sale, transfer or other disposition an affiliate of Trustor remains the managing member or general partner of such limited partner. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the City Loan Note or the Agreement, the Beneficiary, at the Beneficiary's option, may, (a) declare all of the sums secured by this City Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereot) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (o) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, gt M., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any cure of any default made or tendered by Truster's limited partner shall be deemed to be a cure by Trustor and shall be accepted or rejected on the same basis as if made or tendered by Trustor. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Tnistor's Right to Reinstate, Notwithstanding the Beneficiary's acceleration of the sums secured by this City Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this City Deed of Trust discontinued at any time prior to S days before sale of the Security pursuant to the power of sale contained in this City Deed of Trust or at any time prior to entry of a judgment enforcing this City Deed of Trust if. (a) Trustor pays the Beneficiary all sums which would be then due under this 6 25C-66 City Deed of Trust and no acceleration under the City Loan Note has occlrxed; (b) Trustor cures all breaches of any other covenants or agreements of Truster contained in this Deed of Trust and the Affordability Restrictions on Transfer of Property; (c) Truster pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Truster contained in this City Deed of Trust and the Affordability Restrictions, and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this City Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay the sums secured by this City Deed of Trust shall continue unimpaired. Upon such payment and cure by Truster, this City Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee Trustee accepts this Trust when this City Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this City Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee, 21. Reconve ay Lice, Upon payment or forgiveness of all surns secured by this City Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this City Deed of Trust and the City Loan Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. ,Substitute Trustee. The Beneficiary, at the Benefrciaiy's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Loan Agreement, City Loan Note, and this City Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Truster to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Truster's interest in the Property. 7 25C-67 IN WITNESS WHEREOF, Trustor has executed this City Deed of Trust as of the date first written above. ADMINISTRATIVE GENERAL PARTNER a a a By: Dated: MANAGING GENERAL PARTNER a By: Dated: 25C-68 Exhibit F - • . I 25C-69 CITY LOAN NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CIi'Y OF SANTA ANA, CALIFORNIA Santa Ana, California 1. Princinal Amount of Loan For value received, and , a ("Borrower") promises to pay to the order of THE CITY OF SANTA ANA ("City"), at 20 Civic Center Plaza, 6'" Floor, Santa Ana, California 92701, or at such other place as the City may from time to time designate in writing, or to the assignee of the City, the principal sum of ($ ) or so much thereof as shall be disbursed hereunder, with three percent interest (3%) commencing upon filing of Notice of Completion. City and Borrower have heretofore entered into that certain Loan Agreement dated concurrently herewith (the "Loan Agreement"), pertaining to the acquisition and rehabilitation of certain real property described in the Loan Agreement as the "Property," commonly known as and the operation of the Property as affordable housing for Extremely -Low, Very -Low and Low Income households. This Note is made pursuant to, entitled to the benefits of and referred to as the City Loan Note in the Loan Agreement; that certain "Affordability Restrictions on Transfer of Property" between Borrower and City, dated on or about the date hereof; and that certain Subordinated City Deed of Trust and Assignment of Rents between Borrower and City, dated on or about the date hereof (the "City Deed of Trust"). This Note, the Loan Agreement, the Affordability Restrictions on Transfer of Title, and the Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City of Santa Ana. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Loan Agreement, 2. Definitions. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following teens shall have the following respective meanings: "Acquisition Costs" shall mean the costs and expenses of Borrower to acquire the Property, as set forth in the Project Budget attached to the Loan Agreement. "City Loan" shall mean the loan evidenced by this Note. 25C-70 "City's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50%) of the City's share of the total Residual Receipts from the Property as further described in Section 5 hereof. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Closing Costs" shall mean: (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consummating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and/or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal, interest and/or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "Operating Expenses" shall mean the sun of the following: (i) payments of principal and interest and all other charges relating to the Senior Loan(s); a property management fee no greater than % of gross rents; (iii) Owner Partnership Management and Asset Management Fees not to exceed of gross rents; (iv) Deposits into required reserves; (v) all other actual, reasonable cash operating costs and expenses, calculated on an 25C-71 annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) Reserved. (c) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms -length transactions for similar services in the Santa Ana, California area. (vi) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement"). (vii) Deferred Developer Fees. "Project" shall mean the acquisition and rehabilitation of the Property by Borrower pursuant to the Loan Agreement. "Property" shall mean the real property located at in the City Deed of Trust. described "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and/or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan. "Refinancing Proceeds" shall be disbursed as set forth in Section 7 hereof, "Residual Receipts" shall mean the Gross Revenues from the Properties located at , for each year, less deductions for Operating Expenses from the same buildings, applicable to each such year less the items listed in Article 5 of the Partnership Agreement, to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, conveyance or lease (other than to a tenant: for occupancy or a transaction set forth in Section 15(c) hereof) of the Property or any portion 25C-72 thereof, or any interest therein by the Borrower, and includes any transfer, assigmnent or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty-five percent (35%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. "Sale Proceeds" shall be disbursed as set forth in Section 8 hereof. "Senior Loan" shall mean the senior loan being made by , concurrent to the City Loan for payment of a portion of the Acquisition and Rehabilitation Costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Term." the term for repayment of this Note shall mean fifty-five (55) years from the date of recording. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 7 (Refinancing Proceeds), 8 (Sale Proceeds) and 10 (Accelerated Loan Repayment). 4. Operating Capital improvement Loan. If the replacement reserve account (`reserves") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to repayment of said loan. Such loan shall be repaid with net cash flow prior to the residual receipt split. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repayment. a. After any deferred Developer Fee has been paid, as set forth hereinabove, the Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note or the City's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred twenty (120) days after the year in which the rehabilitation of the Project is completed, and on or before the 120th day of each Calendar Year thereafter, the Borrower shall submit to the City a detailed statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City Loan payment then due, 0 25C-73 c. Except as otherwise provided in Section 4, the Borrower shall pay to the City the fifty percent (50%) of the Residual Receipts as payment of principal and interest under their loans. The remaining amount of the Residual Receipts shall remain with the Borrower to be used by Borrower as determined by the General Partners of Borrower, including, without limitation, for distribution to the partners of the Borrower. d. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any accrued but unpaid interest, if any, then to reduce the principal balance of the loans. 6. Reserved. 7. Loan Reoavment from Refinancing Proceeds. The Borrower shall make a loan payment to the City from every Refinancing that occurs during the term of this Note not to exceed the outstanding balance of principal and interest on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the Borrower shall pay to the City fifty percent (50%) of the Refinancing Proceeds to the extent of the outstanding balance on this Note. The remaining Refinancing proceeds shall remain with Borrower to be used by Borrower as determined by the General Partners of Borrower, including, without limitation, for distribution to the partners of the Borrower. Such payment shall be due on the date of such Refinancing, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the Loans. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loans in full, 8. Loan Repayment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal and interest on this Note, to the City from any Sale that occurs during the term of the City Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in fall the balance remaining on the Senior Loan; next the Borrower shall pay to the City fifty percent (50%) of the total Sale Proceeds, not to exceed the outstanding amount of principal and interest due on this Note. This fifty percent (50%) represents the total payment due under the City Note. The remaining Sale Proceeds shall remain with Borrower. Such payment shall be due on the date of such Sale, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the Loans, The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loans in full. 9. Buy Out Option. Prior to the initial disbursement under this Note, the Borrower shall grant to the City a Right of First Refusal (subject to any purchase option and/or right for first refusal granted to one 25C-74 or more of the general partners of the Borrower) (the "City Right of First Refusal") to acquire the Property if Borrower desires to transfer the Property to an entity which is not affiliated with one or more of Borrower's general partners. The City Right of First Refusal shall be in form and substance acceptable to the City and shall comply with all applicable Tax Credit requirements. 10. Accelerated Loan Payment, The full principal amount outstanding plus accrued but unpaid interest thereon, shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 15 hereof; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the City Loan, the City approves such sale -and the purchaser assumes the balance of the City Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in Hill the City Loan, the City approves such Refinancing and the Borrower remains obligated pursuant to the terns of this Note. In event of default pursuant to any of the Loan Documents or the Senior Loan Documents. c. Any default by Borrower as to any other loan or loans by City to Borrower with respect to the Property, or d. The date that is fifty five (55) years after the date of execution of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Tern of this City Loan Note, 11. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, together with any accrued but unpaid interest, if any, and other sums owed to the City under this Note, if any, at any time without penalty. 12, Lawful Money. Principal and interest are payable in lawful money of the United States of America. 13. Application of Payments, Late Charges. a. Any payments received by the City pursuant to the terns hereof shall be applied first to sums, other than principal and interest, due the City pursuant to this Note, next to the payment of all interest accrued to the date of such payment, and the balance, if any, to the payment of principal. 25C-75 b, If any payment is not received by the City within ten (10) days following the due date thereof, then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4%) of the amount due and rmpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on dernand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of interest and/or principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 14. Security This Note is secured by the City Deed of Trust. 15. Acceleration by Reason of Transfer or )Financine. a. In order to induce City to make the loan evidenced hereby, Borrower . - . agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 12, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordable Housing Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation that is wholly owned by the Borrower and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any 25C-76 Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan together with all accrued and unpaid interest, shall be repaid to the City at the time of each Refinancing or partial Refinancing. c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) a transfer of any general partner's interest in Borrower when made in connection with the exercise by the Borrower's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Borrower's partnership agreement (the "Partnership Agreement") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Borrower pursuant to the right of first refusal or to the general partners of Borrower pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 16. Event of Default. Subject to the provisions of Sections 23 and 25 hereof, the occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within five (S) days of the due date; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Loan Agreement, or the Affordability Restrictions on Transfer of Property within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after the cure period, if any, provided therein. 17. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the City Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duty filed for record and City may foreclose on the City Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal together with all accrued interest shall bear interest at the reference rate on the 25C-77 due date of the delinquent payment plus four percent (4%). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 18, Attorneys' Fees. If this City Loan Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 19, Severability. Every provision of this Note is intended to be severable, In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terns and provisions hereof, which terms and provisions shall remain binding and enforceable. 20, Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 21. Non -recourse. The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower nor any other party shall have any personal liability for repayment of the City Loan or for any other amounts under any of the documentation evidencing, securing or describing the City Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the City Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 22. Subordination. It is hereby expressly agreed and aclaiowledged by Borrower and City that the City Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to the Senior Loan Deed of Trust held by 25C-78 23. Notice of Default. a. Subject to the applicable cure periods set forth in Section 16 and extensions of time set forth in Section 25, and subject to the further provisions of this Section 23, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy -with reasonable diligence and during any period of curing shall not be in default. b. The City shall give written notice of default to the Borrower, specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. C. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the City to be reasonably necessary to correct the default). d. Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. C. If a monetary event of default occurs under the terms of this Note or the City Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of seven (7) days after such notice is given within which to cure the default prior to exercise of remedies by City under this Note and the City Deed of Trust. f. If a non -monetary event of default occurs under the terms of this Note or the City Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default, If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (ISO) days after the first notice of default is given. 10 25C-79 24. Insurance and Condemnation. 24.1 Policies Required. While any obligation of Developer under the Loan Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of insurance in fonn and substance reasonably satisfactory to the City Attorney: (a) worker's compensation insurance and any other insurance required by law in connection with the rehabilitation; (b) prior to comnnenoement and following r..ompletion of the rehabilitation, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (c) upon commencement of the rehabilitation and at all times prior to completion of the rehabilitation, builder's risk -all risk insurance covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (d) public liability insurance in amouuxts reasonably required by City from time to time, and in no event less than $1,000,000 for "single occurrence;" (e) property damage insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000; and (1) any other insurance reasonably required by City. All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to City, The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form and substance satisfactory to City, showing the City as encumbrance. The City shall be named as an additional insured(s) in the policies required under subparagraphs (d) and (e) with primary coverage. Certificates of insurance for the above policies (and/or original policies, if required by City) shall be delivered within ten (10) days after demand therefore, and prior to start of any rehabilitation work. All policies insuring against damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of co-insurance. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to City evidence of renewal or replacement of such policy reasonably satisfactory to City Attorney. 11 25C-80 24.2 City Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section. 24.3 Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi -public use of any portion of the Property (collectively, "Condemnation"), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation.. Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and/or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 24.4 Delivery of Proceeds to City. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the City immediately upon receipt. 24.5 Application of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions") within ninety (90) days (unless extended by mutual agreement of Developer and City) following the occurrence of the damage for which the Proceeds are collected: (a) Developer shall demonstrate to City's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b)) will be adequate to repair the Improvements and to restore the fair market value of the Property, within two years (or such longer time period reasonably determined by City), to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City of (i) plans and specifications reasonably satisfactory to City, and (ii) a rehabilitation contract in form and content, and with a contractor, reasonably satisfactory to City. (b) To the extent that the .Proceeds are insufficient to accomplish the restoration required above, , Developer shall deliver to City (the "Shortfall Funds") in the amount of such shortfall, which funds shall be assigned to City as security for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. (c) Developer shall execute such documents as City requires to evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. 12 25C-81 (d) No Event of Default shall remain uncured. 24.6 Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer Lip to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall either be paid to Developer or applied by City against any obligations to City that are secured by a lien on the Property, as they elects in their sole and absolute discretion. 24." Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within ninety (90) days (unless extended pursuant to Section 19.5) following the date on which the damage occurs, the Proceeds shall be applied by City against any obligations to City that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by City in their sole and absolute discretion. 24.8 Restoration. Nothing in this Article 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 249 Condemnation, Treatment of Compensation Subject to any superior rights of Senior Lender, Developer hereby assigns to the City, as security for all obligations to City secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation"), Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of City, renders or is likely to render the Property not economically viable or if, in City's reasonable judgment Developer's security is otherwise impaired, City may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to City shall be paid to Developer or Developer's assignee. City shall have no obligation to take any action in connection with any actual or threatened condemnation or other proceeding. 24.9.1 Notwithstanding the foregoing, as long as the value of City's liens are not impaired, any condemnation proceeds may be used by the Borrower for repair and/or restoration of the Project. 13 25C-82 24.10 Waiver of Subro as tion, Developer hereby waives all rights to recover against the City (or any officer, employee, agent or representative of the City) for any loss incurred by Developer from any cause insured against or required by any Loan Document, to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 25. Force Maieure. Notwithstanding specific provisions of this Note, performance hereunder shall not be ccmed to be in default where delays or defaults are due to; war; insuarection; strikes; lock -outs: riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; govenunental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform, An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower, 26. Assignments, The City, and the assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assigranent. 14 25C-83 This City Note is hereby agreed to and executed on the date first set forth above. "BORROWER" ADMINISTRATIVE GENERAL PARTNER Dated: MANAGING GENERAL PARTNER m Dated: 15 25C-84 Exhibit G - Affordability Restrictions on Transfer of Propertl 25C-85 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Santa Ana Community Development Agency Housing Department M-26 20 Civic Center Plaza, 6th Floor P.O. Box 1988 Santa Ana, California 92702 SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY THESE AFFORDABLE HOUSING RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into as of , by and among and (referred to herein as the "Developer") a the City of Santa Ana, a charter city and municipal corporation (the "City"). RECITALS: A. Developer is the owner of that certain real property located at , (the "Property") located in the City of Santa Ana more particularly described in Exhibit A, which is attached hereto and incorporated herein by this reference. B. For the purpose of providing units of housing that will be affordable to Extremely -Low, Very -Low and Low Income households ("Assisted Units"), the Developer, the City have entered into that certain Loan Agreement, dated on or about the date hereof (the "Loan Agreement") to which these Restrictions are attached as Exhibit G, which, along with all of its attachments, is incorporated herein by this reference (any capitalized tern that is not otherwise defined in these Restrictions shall have the meaning ascribed to such terin in the Loan Agreement). C. The Loan Agrmnent provides, among other things, for the use of the Property for affordable housing with all Assisted Units being restricted to Extremely -Low, Very - Low and Low income households, at Affordable Rent(s). D. The Loan Agreement contains certain provisions relating to the use of the Property. 25C-86 NOW, THEREFORE, CITY AND DEVELOPER COVENANT AND AGREE AS FOLLOWS: 1. Developer covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property or any part thereof) that Developer, such successors, and such assigns shall use the Property exclusively to provide affordable housing of Extremely -Low, Very -Low and Low Income households, as provided in these Restrictions and in the Loan Agreement, 2. Developer, for itself and its successors and assigns, hereby covenants and agrees that all of the apartments in the Property (less one manager's unit) (the "Units") shall be rented exclusively, at Affordable Rent, to Extremely -Low, Very -Low and Low Income households to the extent provided for herein. Area median income levels and Affordable Rents are subject to adjustment from time to time as provided in Section 3 below. 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. A. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all rental units on the Property available to extremely low and very low households at rents affordable. to such households for fifty-five (55) years from the effective date of this Agreement. The HOME restrictions for the HOME assisted units shall be enforced until the date that is fifteen (15) years after the date on which the City reports the Project as complete to the Department of Housing and Urban Development. Upon expiration of the 15 year HOME compliance period, the City will enforce affordability of the units with the same income and rent restrictions as the other units, pursuant to City guidelines and the California Health and Safety Code, The City permits the Developer to limit the eligibility and/or give preference to a particular segment of the population in accordance with 24 CFR 92.253(d), B. The Project shall consist of units, including of which there will be There shall be HOME assisted units, The HOME assisted units shall be units and shall be distributed throughout the complex with comparable amenities to the other units. The affordability mix for the Project is as follows: Unit Type AMI Level # of Units Studio XX % AMI XX One -Bedroom XX % AMI XX Two -Bedroom XX % AMI XX Three -Bedroom XX % AMI XX Four -Bedroom XX % AMI XX Studio Manager' Unit XX 2of12 25C-87 C. At initial lease up, households in the HOME assisted units cannot earn more than 50% of AMI, however existing tenants at the Property who are otherwise eligible under the HOME Program may continue their tenancy at the Property, Rental increases shall be in conformance with federal and state law. After the fifteen (15) year HOME compliance period, the City shall require that the units remain affordable, with rents calculated based on assumed household size at the same income levels, as required by the California Health & Safety Code. D. All of the HOME units will be restricted to occupancy by fifty percent (50%) of the Area Median Income (AMI). Current residents whose incomes exceed eighty percent (80%) of the AMI will be allowed to remain. Rents for these households will be increased to either thirty (30%) percent of their monthly household income or market rent for the neighborhood, whichever is lower. E. Affordable rents shall be governed by California Health and Safety Code Sections 50052.5 and 50053(b)(1), and as provided in the HOME Regulations 24 CFR section 42.2, F. Rents During Constxuction/Rehabilitation: (a) All HOME units shall be charged the Low HOME rent, as amended from time to time (currently $ for -bedroom unit and $ for a unit). 3.2 Affordable Gross Starting Rents (Less Reasonable Utility Allowance): Initial rents maybe recalculated to allowable rental amounts at the time of initial lease -up following completion of construction/rehabilitation in accordance with any changes in allowable rent and income tables as published by HUD. Rents for non -HOME assisted units will be based on the rents published annually by California Tax Credit Allocation Committee (TCAC). A. HOME Assisted Units Rent # of Units Max Gross Monthly Low Studio $ 1 Bedroom $' 2 Bedroom $ _ 3 Bedroom _ $ 4 Bedroom $ _ 5 Bedroom $ (1) In no event shall the rent charged to the tenant of the HOME assisted units be more than that amount of the low rent as published by HUD, as amended from time to time. (2) Utility allowances must be deducted from the Maxim= Gross Monthly Rent. The. Housing Authority of the City of Santa Ana publishes the Utility Allowance Schedule. 3of12 25C-88 (3) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME assisted units. (4) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of assisted units, including HOME -assisted units, to verify compliance with affordability requirements. For the HOME units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. 3.3 pent Increases: On an annual basis, the City shall provide the Developer with the maximunn allowable schedule of rents for the Property, In no event can Developer charge any tenant more than such amount. 4. Developer, its successors and assigns shall not charge rents for the Units in excess of the amounts set forth herein, as adjusted on the basis of the revised schedules of area median incomes issued from time -to -time by HUD, The City shall notify Developer in writing of the adjusted allowable maximum incomes and rents. 5. Developer shall adopt and include as part of its Management Plan (described in Section I I below), written tenant selection policies and criteria for the Units, that meet the following requirements: (a) Are consistent with the purpose of providing housing for Extremely Low and Very Low Income households; (b) Are reasonably related to program eligibility mud the applicants' ability to perform the obligations of the lease; (c) Give reasonable consideration to the housing needs of households that would have a preference under 42 CFR §906.211 (Federal selection preferences for admission to Public Housing); (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the City; and (i) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Developer shall cooperate with the City to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re -renting of any Restricted Units (24 4of1.2 25C-89 CFR 92.351). 6. Developer, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant -based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable HOME tenant -based assistance document. Total rents changed to such tenants, including the tenant contribution and rental assistance, shall not exceed the allowable rents as described above. 7. Any lease of any of the units must be for not less than one year, unless by mutual agreement between the tenant and the Developer. Should the tenant and Developer agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Developer, The lease may not contain any of the following provisions (in which references to "owner" shall mean the Developer, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties, This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. 8. Developer, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. 5of12 25C-90 9. Developer shall maintain the improvements on the Property in compliance with all applicable housing quality standards [24CFR 92.504 (c)(6)] and state and local code requirements (California Health and Safety Code section 33418), and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Developer shall also maintain in a healthy condition any landscaping planted on the Property. 10. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, mental or physical disability, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations , 11. Not later than five (5) business days prior to the execution of the docu rents, Developer shall submit to the Executive Director a Management Plan in a form that is acceptable to the Executive Director, including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the Executive Director not later than the time for the Closing. Developer shall manage the Assisted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the Executive Director, for the tern of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Developer shall submit the name and qualifications of the proposed Management Agent, The Executive Director shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent, The City hereby approves as the initial Management Agent. (b) Management Agreement. Developer shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Developer and Management Agent. (c) Annual Budget and Projected Cash Flows Prior to the Closing, and annually thereafter not later than ninety (90) days after the close of each calendar year thereafter, Developer shall submit a projected operating budget and cash flow to the Executive Director. The budget and cash flow shall be in a form that is acceptable to the Executive Director. (d) Tenant Selection Policies Developer shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. 6of12 25C-91 12, If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, the City shall send the Developer a detailed description of the management deficiencies (a "Deficiency Notice"), If the deficiencies set forth in the Deficiency Notice are not cured within thirty (30) days (or such longer period as may be reasonably designated by the City), with the exception of HOME regulations that require a shorter period, the Executive Director may require Developer to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Developer without penalty, upon thirty (30) days prior written notice, at the direction of the Executive Director. Within ten (10) days following a direction of the Executive Director to replace the management agent in accordance with the terms hereof, the Developer shall select another management agent or make other arrangements satisfactory to the Executive Director or designee for continuing management of the units. 13. The covenants established in these Restrictions and any amendments hereto approved by the City and Developer shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns, These Restrictions shall remain in effect for fifty-five (55) years. In its discretion, the City may defer repayment of the HOME Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may detenine are necessary for the continued maintenance and operation of the Assisted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. 14. Developer shall not request disbursement of HOME funds until the funds are needed to pay eligible costs. The City shall have the right to disapprove any request if the City determines the request is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreement and these Restrictions [24 CFR 92,504 (c)(10)]. 15. Developer shall prepare, maintain and submit to the City, as appropriate, the following records and reports in compliance with 24 CFR 92.504 (c) (12): a. Annual Reports. Developer shall file with the City an Annual Report (herein referred to as the "Annual Report") within one hundred twenty (120) days following the end of each calendar year, commencing with the end of the calendar year (or portion thereof) in which the Real Estate Closing occurs, The Annual Report shall contain a certification by Developer as to such information as the City Executive Director may then require, including, but not limited to, the following: (1) The fiscal condition of the Project, including the Annual Budget and Project Cash Flow report required by Section 10 (c) of the Affordable Housing Restrictions which shall include a financial statement for the previous calendar year that includes a balance sheet and a profit and loss statement indicating any surplus or deficit in operating accounts; a detailed itemized listing of income and expenses; and the amounts of any fiscal reserves. Such Annual Budget and financial statement shall be prepared in 7of12 25C-92 accordance with generally accepted accounting practices. The City Executive Director may require that the financial statement be audited at Developer's expense by an independent certified public accountant acceptable to the Executive Director. (2) Any substantial physical defects in the Project, including a description of any major repair or maintenance work undertaken or needed in the previous and current years. Such statement shall describe what steps Developer has taken in order to maintain the Project in a safe and sanitary condition in accordance with applicable housing and building codes and the property standards set forth in 24 CFR 92,251. (3) The occupancy of the units indicating the income of each current resident and the current rents charged each resident and whether those rents include utilities, including records that demonstrate that the Project meets the requirements of 24 CFR 92.253 for tenant and participant protection under the HOME Program. (4) General management performance, including tenant relations and other relevant information. (5) Records that demonstrate that the units meet the affordability requirements of 24 CFR 92.252, 50052.5 and 50053(b)(1) of the California Health and Safety Code, for the required period of affordability according to section 33334.3 of the California Health and Safety Code. (6) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 6 of the City/HOME Deed of Trust, with a loss payable endorsement naming the City as a loss payee(s) together with other approved lenders (as their interests may appear), with a "Replacement Cost Endorsement" in amount sufficient to prevent Developer or City from becoming a co-insurer under the terms of the policy, but in any event in an amount not less than 100% of the then full replacement cost, to be determined at least once annually and subject to reasonable approval by the Executive Director. (7) Evidence of a currently paid liability insurance policy, naming the City as additional insured and in a form approved by the City Attorney with coverage as described in the Loan Agreement. (8) Termite reports pertaining to the Property every fifth (51h) year, (9) Such other information as may be reasonably required by the Executive Director or his/her designee. b. Records and Audits. Developer shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate that the project meets the property standard specified in 24 CFR 92.251; 8of12 25C-93 (2) records, for each HOME Assisted Unit, which demonstrates that the project meets the requirements of 24 CFR 92.252. (3) records which demonstrate compliance with the tenant and participant protections, as specified in 24 Section 29.253; (4) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including; (A) data on the extent to which each racial and ethnic group and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with HOME funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Developer's outreach programs to minority -owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92,350; (5) documentation of the steps taken to carry out an affirmative marketing program in accordance with 24 CFR 92.351, if applicable; (6) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the Real Estate Closing (i.e., the date on which Developer obtained site control); (7) records concerning lead -based paint in accordance with 24 CFR 92.355; (8) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CFR 92.356; (9) records of certifications of contractor qualifications as they relate to the debannent and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Part 24; and (10) any other reports issued by other monitoring agencies. C. All records pertaining to each calendar year of HOME funds must be retained for the most recent five year period, except that for rental housing projects, records may be retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections 9of12 25C-94 must be retained for the most recent five year period, until five years after the affordability period terminates (24 CFR 92.508). Developer shall cooperate with the City to retain all books and records relevant to the Lean Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later, The City, the State, the Office of the Auditor General of HUD, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. d. If so directed by the City, the State or HUD upon termination of the Loan Agreement, Developer shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City, the State or HUD, as depository. e. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, the State or HUD, on reasonable prior notice, for the purpose of examination or audit. £ Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect, Developer shall reasonably cooperate with City in performing such audit. 16. The City is a beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in their own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or snits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. 17. The covenants and agreements contained herein shall run with the land and not be personal obligations of Developer. Upon the sale, conveyance or other transfer of the Property (a "Transfer") and the assumption of the obligations hereunder by a transferee, Developer's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. 18. The Loan Agreement and all of its attachments shall be enforceable by City in accordance with the terns thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City/HOME Loan Note and the City/HOME Deed of Trust provide a means of enforcement by the City if Developer is in breach of its obligations hereunder and thereunder, including liens on the Property, use and deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. 10 of 12 25C-95 IN WITNESS WHEREOF, the parties hereto have caused these Affordability Restrictions on Transfer of Property to be executed on the date set forth hereinabove. ATTEST: Maria D, Huizar Clerk of the Council Dated: APPROVED AS TO FORM: SONIA R. CARVALHO, City Attorney By: Ryan O. Hodge Assistant City Attorney Dated: RECOMMENDED FOR APPROVAL: Robert C. Cortez Deputy City Manager CITY OF SANTA ANA Gerardo Mouet Acting City Manager Dated: 11 of 12 25C-96 ADMINISTRATIVE GENERAL PARTNER Dated: MANAGING GENERAL PARTNER Dated: 12 of 12 25C-97 Exhibit H —SAMPLE Affirmative r- 25C-98 EXI3IBIT II 212Ale3LS. CITY OF SANTA ANA AFFIRMATIVE MARI£ETING AND MINORITY OUTREACH PROGRAM AFFIRMATIVE MARKETING PROGRAM The City of Santa Ana is a participating jurisdiction in the federal HOME Investment Partnership Program (HOME) and the Community, Development Block Grant Program (CDBG). Federal law requires that all. participating jurisdictions adopt affirmative .marketing policies that.include: A. Methods to inform the public about federal fair housing laws and the City's affirmative marketing policy; B. Requirements, and practices owners niust adhere to in order to carry out this policy; C. Procedures owners must use to inform and solicit applications from persons in the housing market area who are not likely to apply for the housing without special outreach; D. Records that owners and the City will keep describing the actions they have taken to affirmatively market units and records to assess the results of these actions; and E. A description of how the City will annually assess the success of affrmiative marketing actions and determine what corrective actions are needed. The City's affirmative marketing procedures and requirements for rental and homebuyer Projects containing five or more HOME or.CDBG-assisted housing units are set forth below. These procedures and requirements constitute the City's Affirmative Marketing Program, These procedures and requirements do not apply to .families with Section-8 tenant -based rental housing Iassistance or families with tenant -based rental assistance provided with HOME funds. A. Met/rods to inform the publle aboutfederal fair housing tarps: ".' The City will display the Equal Rousing logotype or slogan in housing -related pressreleases and solicitations for owners, and on the website page for the City's Housing and Neighborhood Development Division. '.� The City will request that the County of Orange include information on the City's HOME and CDBG-assisted rental units in its countywide Affordable housing List maintained by the County. This list can be fotmd on the internet at bttp://ranvw.oaca aoy/housitsU/Affordable 400usinaList.htrn. The City will maintain a link to this website on the website page for the City's Housing and EXIEIIBIT ] Resolution No.2003-031 Page 3 of 5 25C-99 Neighborhood Development.Divislon and for the Santa Ana Housirig Authority. ,Copies of the list will be available at the public reception counters for the Housing and Neighborhood Development Division and the Santa Ana Housing Authority, B. Requirements and practices owners mast adhere to; - The City will require owners of City HOME and CDBG assisted rental units covered under this marketing plan. to display the Equal Rousing Opportunity logotype or slogan in all correspondence with current or potential tenants; and on lease agreements. The City will require them to display the fair housing poster in their leasing offices, and to develop written procedures for selecting tenants. These procedures must meet the following criteria. c They must be consistent with the purpose of providing housing .for very low-income and low-income families; o They must be reasonably related to .program eligibility and the applicants° ability to perform the obligations of the lease; o They must give reasonable consideration to the housing needs of families that would have a federal preidrence under section 60(4)(A) of the Act; o They must provide for the selection of tenants from a written waiting list in chronological order of their application, insofar as is practicable; o They must call for prontpt written notification to any rejected applicant of the grounds for any rejection: -- - - 'C Proceduresforownerst •8 The City will require owners of City HOME and CDBG-assisted rental units to continuously review the demographic makeup of their tenants. If and when such review indicates that their tenants no longer reflect the City's minority population, they Will be required to inform the City of that fact and request City review and approval of steps they will take to correct that deficiency. S Compliance with the City's affirmative marketing requirements and procedures will bo. made an obligation of all rental property owners receiving HOME or CDBG assistance from the City of Santa Ana, and will be enforceable by means of appropriate actions described in loan documents recorded thrmigh the County of Orange. D. Record keeping; The City will require owners of its HOME and- CDBG-assisted rental units covered under this marketing plan to make an annual report to the City detailing the steps they have taken to comply with this program. They will also be required to report on the ethnicity of their tenants, as well as rents, income levels, and other household characteristics. Reports will be made on a form that is acceptable to Resolution No. 2003-031 LXHIBIT I Page 4of5 25C-100 2/24/b3L5, the City of Santa Ana, and that wilf enable the City to capture the data it needs to evaluate owner compliance with this program.'.' The City will maintain records on owner reports and its evaluation of those reports for a period of not less Than ten years after expiration of the affordability period required by applicable HUD regulations. E. Annual assessment: »� Upon receipt of owner reports, the City will evaluate the ethnic and racial characteristics of tenants •being, 'served 'to determine if they reflect the City's housing market. If they do not, the City will direct the owner to take further affirmative marketing steps to correct the' imbalance. The City will track and evaluate the steps taken to ensure they have the desired effect. MINORITY OUTREACH PROGRA As a participating jurisdiction, the City is also required to adopt certain affirmative steps to ensure maximum feasible participation in ROME and CDBG-funded projects by minority business enterprises, women's business enterprises, labor surplus area firms and other small businesses. These affirmative steps are listed below and constitute the City's Minority Outreach Procedures and Requirements Program for IIONM and CDBG-funded projects, The City will plaee qualified small and minority businesses and women's business enterprises on sdlicitation lists; 4* The City will assure that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; The City will divide total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business; and women's business enterprises; 4• Thd City will use the services and . assistance of the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and The City will require the prime contractor, if subcontracts are to be let, to take the affirmative steps listed above. The City will annually review the results of these procedures to determine if additional steps should be taken, EXHIBIT z Resolution No. 2003-031 Page 5 of 5 25C-101 Exhibit I � SAMPLE Form of Residual 25C-102 EXI�TBIT G FORM OF RESIDUAL RECEIPTS REPORT Community Redevelopment Agency of the City of Santa Ana Residual Receipts Report for the Year Ending Date Prepared Please complete the following information and execute the certification at the bottom of this form. Annual Proiect Revenue Please report Annual Project Revenue for the year ending on the following lines: Rent Payments (including Section 8 tenant assistance payments, if any) (1) $ Interest Income (do not include interest income from replacement and operating reserves nor interest income on tenant security deposits) (2) $_ Additional Income (for example, vending machine income, tenant forfeited deposits, laundry income not paid to the residents' association) (3) $ Total Annual Project Revenue (Add lines 1, 2, and 3) (4) $T Operating Exnensesr Please report Operating Expenses 'incurred :for the year ending on the following lines: Operating and Maintenance Expenses Utilities (5) (6) Property Management Expenses and On -Site Staff Payroll (7) Administrative Expenses (8) Property Taxes (4) Insurance (10) 25C-103 Other Fxpenses (1l) Please list these expenses: Total Annual Operating Expenses for the Rousing Project (12) (Add lines 5, 6, 7, 8, 9, 10, and 11) Net Operating Income (Subtract Line 12 from Line 4) (13) Do not include expense unrelated to the operation of the Rental Portion of the Project, such as depreciation, amortization, accrued principal and interest expense on deferred payment debt, or capital expenditures. Additional Cash Flow Payments Obligated First Mortgage Debt Service Payments (as approved by the Agency and (14) $ other parties that may have such approval rights) and Obligated Secondary Subordinate Debt Service Payments (as approved by the Agency and other parties that may have such approval rights) Scheduled Deposits to Reserves (as approved by the Agency) (15) $ Additional Payment Obligations (such as partnership management fees, deferred (16) $ developer fees, or repayments on loans to partners, asapproved by the Agency to have priority over Residual Receipt Payment to the Agency) Total Additional Cash Flow Payments (Add lines 14, 1$, and 16) (17) $ Residual Receipts for Year Ending (18} $ (Subtract Line 17 from Line 13) Percentage of Residual Receipts to be Paid to the Agency (as shown in the (19) Promissory Note by and between the Agency and Borrower dated Amount Payable to the Agency (Multiply Line 18 by Line 19) (20) The amount payable to the Agency listed on Line 20 is subject to payment according to the terms of the Promissory Note by and between the Agency and Borrower dated . If Line 20 is $0.00 or negative, you owe nothing to the Agency this year. If Line 20 is a positive number, remit check payable to and attach to this report. 25C-104 AN IL 02"1 -t! I • M 0 -t- q 641 25C-105 EXHIBIT J CITY OF SANTA ANA REHABILITATION STANDARDS PREFACE The primary purpose of these standards is to address the quality of workmanship and materials expected, and to achieve consistency throughout the program activities administered by the City of Santa Ana. These standards are not intended to reduce or exclude the requirements of any federal, state or local codes, standards, ordinances and regulations that apply to residential rehabilitation. WORKMANSHIP • All work shall be performed in a professional and workmanlike manner. • The quality and durability of the work shall meet or exceed the standards established by the construction Industry and various trades. MATERIALS & EQUIPMENT • All materials and equipment shall comply with and be installed in accordance with the manufacturer's requirements and all applicable codes, standards, ordinances and regulations. If a discrepancy occurs between the requirements, the more stringent shall prevail. • Unless otherwise specified, all materials and equipment shall be medium grade. • Economy grade materials and equipment are unacceptable, * All materials and equipment shall be new, In excellent condition, and delivered to the job in the manufacturer's original packaging. • The description of materials and equipment found in this document establish a minimum standard. ENERGY EFFICIENCY, WATER CONSERVATION & RECYCLED MATERIALS To the extent possible and practical, standard measures related to energy conservation, energy efficiency, water conservation and the use of recycled materials have been incorporated herein. Gut rehabilitation or new construction of residential buildings up to three stories will be designed to meet the standard for Energy Star Qualified New Homes. Gut rehabilitation or new construction of mid or high rise multi -family housing must be designed to meet the American Society of heating, Refrigerating and Air -Conditioning Engineers (ASHRAE) Standard 90.1-2004, Appendix G plus 20 percent. LEAD -BASED PAINT All housing built before 1978 must comply with 24 CPR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -based paint hazards. HUD's guidelines are available at httD://www.hud.aov/offices/lead/Ibn/hudRuidellnes Andex.cfm, BUILDING STANDARDS Minimum Standard • The site shall be hazard -free and sanitary. • The site and all paving shall drain away from the dwelling and accessory buildings, but not onto adjacent properties. • Paving and walkways shall be hazard -free and intact. • Landscaoine and irrieation systems shall be hazard -free and in 25C-106 relatively good condition. All dead vegetation shall be removed, • Fencing, walls and gates hazard -free and intact, All gates shall be in good working order. • The site shall be free from trash, debris and hazardous materials. • Accessory buildings shall be safe and sound. Paving • All new paving and walkways shall be constructed with concrete (2,000 PSI @ 28 days), • Driveways shall be reinforced with wire mesh. Sawn expansion - contraction joints shall be placed every 8 feet in both directions. • All paving and walkways shall be finished with a light broom texture. • All walkways shall be at least 3 feet wide. Sawn expansion- contractionjoints shall be placed every 4 feet. Landscaping & • To the extent possible and practical all new landscaping shall be Irrigation drought resistant. • When a lawn is being replaced, the new lawn area shall be reduced to aid in the reduction of water consumption. • New irrigation controllers shall be weather or sensor based and EPA Water -Sense qualified. • All new irrigation systems shall be designed to conserve water. Fences, Walls & Gates • All new wood fences shall be made from good quality materials, They shall be properly supported with 4X4 pressure treated posts (8 feet O.C.) and 2X4 rails (top and bottom). The posts shall be embedded in a concrete footing at least 18" deep. • All new block walls shall be constructed with 6X8X16 concrete block. They shall be properly supported by a continuous footing and reinforced with steel bar. 91 p ! ! Minimum Standard • Roofs shall be safe and structurally sound, • Roof coverings shall be intact and watertight. • Roofing metal and flashing shall be intact and rust free. • Gutters and downspouts shall be intact and rust free. • Roof coverings with five or less years of useful life shall be replaced. _ Rehabilitation Roofs that do not meet the minimum standard shall be replaced, Practical, cost effective repairs are acceptable as long as compliance with the ininimum standard will be achieved. • The replacement of roofing includes the replacement of all metal (roofjacks and flashing). • Gutters and downspouts shall be installed to properly discharge rain water run-off, Roof Coverings • 25-year, 3-tab, self-sealing composition shingle. Built-up membrane (hot mop) system on all flat roofs. 25C-107 Lighter colored coverings are preferred for energy efficiency. Standard • Safe, straccturall sound and watertight. lion -.Decks, balconies and railing that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Zero or low VOC nrimers. paint and coatines. Minimum Standard Safe and stracturally sound. Rehabilitation • Ext. steps, stairways and railing that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Finishes • Zero or low VOC nrimers. Daint and coatines. Minimum_ Standard • Safe and structurally sound. _ Rehabilitation • Foundations that do not meet the minimum standard shall be replaced. 'Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, raised foundations shall be I Concrete • 2,000 PSI (minimum), I Minimum Standard • Safe, structurally sound and watertight. Rehabilitation Exterior walls that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, all exterior walls shall be insulated. Minimum Standard • Safe, sound, weather-tght and in good working order. Rehabilitation • Exterior doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. New Doors • EPA Energy Star qualified, zero or low VOC finish, New Hardware • Reputable manufacturer, lifetime finish. 25C-108 Minimum Standard a Safe, sound and in good working order. Doors shall be impermeable (primed and painted). • Five or more years of tactical utility. Rehabilitation • Garage doors and openers that do not meet the nnimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved, b Minimum Standard • Windows shall be safe, sound, weather -tight and in good working order. • Windows that can be opened shall have a tight -fitting insect screen. • Five or more ears of practical utility. Rehabilitation • Windows that do not meet the minimum standard shall be replaced, Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. New Windows • Reputable manufacturer. • EPA Ener Star qualified. Minimum Standard • J • • Homes built before 1978 must comply with 24 CFR Part 35 Subpart and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -based paint hazards. All exterior paint shall be intact and free of corrosion. Five or more years of practical utility Rehabilitation • _ All surfaces to be painted shall be prepared properly. All loose material and peeling paint shall be removed. • All holes and cracks shall be filled and finished so that they blend into the surrounding area. • All stucco surfaces to be painted shall receive a complete and even coverage of stucco paint. • All wood surfaces to be painted shall receive a complete and even coverage of flat exterior paint. • Poor workmanship will not be tolerated, New Paint • Reputable manufacturer. • Highest quality available. • Zero or low VOC paint, caulldna and fillers. Minimum Standard • Safe and shucturally sound. • All plaster, drywall and paneling shall be safe and intact. Rehabilitation • Walls and wall coverings that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, the attic, walls and floor on 25C-109 �� raised � foundations shall be insulated. �_�. i la i Minimum Standard • Safe, sound acid sanitary. • Five or more years ofpractical utility Rehabilitation • Floor coverings that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Floor • Carpet & Pad (Reputable manufacturer, recycled materials). Coverings a Resilient Flooring (Reputable manufacturer, 10 year wear warranty). • Ceramic Tile Reputable manufachirer Minimum Standard • Homes built before 1978 must comply with 24 CFR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -based paint hazards. • All interior paint shall be intact and corrosion -free. • Five or EMU ofpractical utility. Rehabilitation • All surfaces to be painted she be prepared properly. All loose material and peeling paint shall be removed, • All holes and cracks shall be filled and finished so that they blend into the surrounding area. • All surfaces to be painted shall receive a complete and even coverage of flat paint (semi -gloss in ldtohens, bathrooms and laundry rooms). • Poor workmanship will not be tolerated. New Paint • Reputable manufacturer. • Highest quality available. • Zero or low VOC Taint. caulkine and fillers, Minimum Standard • Cabinets shall be safe, sound, sanitary and in good working order. • Countertops shall be safe, sound, sanitary and watertight. • Five or more vears of practical utility. 25C-110 Rehabilitation . Cabinets and countertops that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Cabinets • Reputable manufacturer. • Solid hardwood face -frames, door -frames and drawer fronts, • Metal and nylon drawer guides. • Low or zero VOC adhesives and finishes. Replacement • Reputable manufacturer. Countertops • 4" ceramic tile, 6" backs lash, bull -nose edge. Minimum Standard • Safe, sound, sanitary and in good working order. • Faucets shall (at a minimum) be equipped with a low -flow aerator. _ • Five or more years of practical utility. Rehabilitation • Kitchen fixtures, equipment and appliances that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Sinks Reputable manufacturer. • 1 S-guage (minimurn) stainless steel, ____ Replacement Faucets • EPA Water -Sense qualified. • Reputable manufacturer. • Brass construction, metal housing, Replacement Disposals • Reputable manufacturer. • %s HP motor (minimum). • Stainless steel swivell hti� Replacement • EPA Energy Star qualified, Dishwashers • Reputable manufacturer. _ Replacement Range • EPA Energy Star qualified. Hoods • Rye utable manufacturer. Replacement Ranges • Reputable manufacturer. • Pilot -free ignition. • Four sealed burners. • Self-cleaning oven with timers Replacement Cook Tops • Reputable manufacturer. • Pilot -free ignition. • Four sealed burners. Wall Ovens • Reputable manufacturer. • Pilot -free ignition. • Self-cleaninj oven with timer, _ Minimum Standard • Safe, sound. sanitary and in good workinu order. 25C-111 • Faucets shall (at a minimum) be equipped with a low -flow aerator. • Showerheads shall (at a minimum) be equipped with low -flow aerator. • Porcelain sinks shall be free from any cracks or clips. • Steel sinks shall be free from any rust or corrosion. • Five or more years of practical utility. Rehabilitation ! Bathroom fixtures and equipment that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Toilets that require more than 1.6 GPF shall be replaced regardless of their condition. Replacement Sinks • Reputable manufacturer. « Cast iron white enamel finish. Replacement I�'aucets • EPA Water -Sense qualified. • Reputable manufacturer. Brass construction, metal housing. Replacement Toilets • Reputable manufacturer.~ • EPA Water -Sense ualified Q,28 GPF)_ Replacement Tubs • Reputable manufacturer. • Cast iron body, white enamel finish, slip resistant bottom. EPA Water -Sense ualiled lumbing fixtures, Replacement • Reputable manufacturer. Combination • Cast iron body, white enamel finish, slip resistant bottom. Tub -Showers . 4" ceramic tile surround. • Anodized aluminum doors with tempered glass. EPA Water -Sense qualified plumbing fixtures. Replacement Showers . Reputable manufacturer. 4" ceramic tile. • Anodized aluminum door with tempered glass. _ + EPA Water -Sense gttalifred lumbing fixtures. Replacement • Reputable manufacturer. Medicine Cabinets • Steel body, beveled mirror door. Towel Bars & Toilet . Reputable manufacturer. Paper Holders . Metal construction, polished chrome finish. _Minimum Standard • Safe, sound and leak -free. Rehabilitation . Piping (supply, waste and vent) that does not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. 25C-112 Water Su I Pi in Replacement Schedule 40 ABS. Waste & Vent Piping Lai Minimum Standard • Safe, sound and in good working order. • Five or more years of practical utiht�. Rehabilitation f Water heaters that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement • Reputable manufacturer. Water Heaters (Tank) • EPA Energy Star qualified. • 40-gallon insulated tank. Replacement • Reputable manufacturer. Water Heater EPA Energy Star qualified. Tank -Less) Minimum Standard • Safe, sound and in good working order. • 100-am ere minimum service. Rehabilitation • Electrical service panels, breakers and wiring that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Knob and tube wiring shall be replaced regardless of its condition. • Overhead wiring from a dwelling to a detached garage or accessory _ building shall be installed_ underground regardless of its condition. Replacement • Reputable manufacturer. Service • 100-ampere (minimum). Replacement • Romex (NM cable). Minimum Standard • Safe, sound and in good working order. • Light fixtures shall (at a minimum) be equipped with CFL bulbs. • Exterior lighting fixtures used for security shall be equipped with a rnotion sensor. Rehabilitation • Electrical switches, outlets and lighting fixtures that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • All new light fixtures shall be U.L, approved and Energy Star qualified. • Outlets located within 6 feet of a source of water shall be around 25C-113 • Exterior switches and _outlets shall be Replacement • U.L, approved. Replacement • Reputable manufacturer. Lighting Fixtures • U.L. approved and EPA Energy Star qualified. Minimum Standard • Safe, sound and in good working order. • Five or more years of practical utility. _ Rehabilitation • HVAC that does not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Tune-up all HVAC equipment (as a minimum). • Seal all ducts (as a minimum). • All new HVAC equipment shall be sized properly. Furnaces • Reputable manufacturer. + EPA Energy Star goal feed. Central Air s Reputable manufacturer. Conditioners • EPA EneSYar qualifiod. Thermostats • Reputable manufacturer. + EPA Energy Star qualified. e Programmable, Minimum Standard • Additions and alterations that were constructed without a building permit and are clearly substandard shall be removed. • Garages converted to living quarters shall be returned to their original use. • Additions and alterations that were constructed without a building permit, but appear to be compliant, shall be inspected by the City's Building Official to determine if a building permit can be issued 25C-114 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: INCLUSIONARY HOUSING AGREEMENT WITH HERITAGE VILLAGE OC, LLC TO RECEIVE $9,695,725.60 IN THREE PHASES {STRATEGIC PLAN NO. 5, 3B) y.r CITY 4,NAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1°t Reading ❑ Ordinance on 2"d Reading 71 Implementing Resolution ❑ Set Public Hearing For CONTINUED TO 51I Authorize the City Manager and Clerk of the Council to execute an Inclusionary Housing Agreement with Heritage Village OC, LLC for The Heritage Village Apartments, in an amount not to exceed $9,695,725.60, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The Housing Opportunity Ordinance ("Ordinance") encourages the development of affordable housing by requiring the inclusion of affordable units within developments that involve either an increase in the density otherwise available under applicable zoning and development standards; a change in land use designation from a zoning regulation that does not permit residential uses to one that does permit residential uses; or the conversion of rental units to condominium ownership. This ordinance applied to all projects entitled after November 2011. Developers have the option to pay an in -lieu fee based on the habitable square foot of the project to satisfy the Ordinance requirements. Heritage Village OC, LLC, developer of The Heritage Village Apartments project located at 2001 E. Dyer Road (Exhibit 1), will comply with the Housing Opportunity Ordinance by paying an in -lieu fee of $9.35 per habitable square foot in the total approximate amount of $9,695,725.60. The developer has been working with staff to complete the documents required by the Housing Opportunity Ordinance. The Inclusionary Housing Agreement (Exhibit 2) satisfies the inclusionary housing requirement of the project and is consistent with the standards set forth in the Ordinance. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #3 (Facilitate diverse housing opportunities and support 25D-1 Inclusionary Housing Agreement — Heritage Village February 7, 2017 Page 2 efforts to preserve and improve the livability of Santa Ana neighborhoods), Strategy B (Ensure compliance with the City's Housing Opportunity Ordinance by requiring rental and ownership housing projects that meet specified criteria provide a minimum of 15% affordable units). FISCAL IMPACT It is anticipated that funds in the amount of $9,696,725.60 will be received in three phased payments according to the Project's Development Agreement, which are to be paid when the developer pulls building permits for the residential structure of each project phase. Project Phase Estimated Fee Estimated Payment Date (Fiscal Year) Phase 1 $2,700,000.00 Februa 2017 (FY16/17) Phase 2 $3,250,000.00 July 2017 FY17/18) Phase 3 $3,745,726.60 December 2017 FY17/18) TOTAL $9,695,726.60 Upon receipt, the revenues will be deposited into the Inclusionary Housing Fund revenue account (no.41718002-57896). Robert C. Cop ez Deputy City Manager City Manager's Office Exhibits: 1. Location Map 2. Inclusionary Housing Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez 9p Executive Director Finance & Management Services Agency 25D-2 EXHIBIT 1 THE HERITAGE PROJECT ro .. 'A' FCAnbrml PF m E St Andrew Pl E St Andrew PI .. 'Q E Si Apdr,.,y t'! A Y/i N N 4 U eS W C 4 '�♦_. /"Rcr 0 is s, z" m s 56lfTx ATnlN. 'x 54 aattrutic Pi. �. e.YumtFh 1 lhisallwst.Pl ,e �14 a� YG' Warner Ave c f Warner Ave Ewa; ter Are f£ [Itord 5t OWN Poor EFlora St. 2':y �^✓,af� E Cap.oal-Are @ Central Avo � � H` %A? Centralm Ave E Adams tit EAdams St m N C.',z Ave .'ai „ Dyer � aYourrgSt �1P S W Dyer Rd f Dyer Lid _ 6 Dyer Rd y CalrlageQ 9f' F X �5 to yr £ Allen Ave - L Atten Ave64 R. Labe...}d'" N i I �. 5i e�y Fad try C �41R6tIllP e� ys E CN lP%,,. Ave Lf 55 } 1� �. ,,.a d 9f Ivd WAlgvne Ave £MpeArttrur Blvd � ]y,P % � -. aq 2001 E. DYER STREET 25D-3 25D-4 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Santa Ana Exhibit 20 Civic Center Plaza Santa Ana, California 92701 Attention: City Clerk To be recorded without fee. (Space Above This Line For Recorder's Use Only) (Government Code, §§ 8103 and 27383) INCLUSIONARY HOUSING AGREEMENT FOR PAYMENT OF IN -LIEU FEE THIS INCLUSIONARY HOUSING AGREEMENT is dated as of February 7, 2017, by and between the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, and Heritage Village OC, LLC, a Delaware limited liability company ("Developer"). RECITALS A. The City's Housing Opportunity ("Ordinance") was originally adopted by the City Council on November 28, 2011 and is codified in Article XVIII.1 Section 41 — 1900 of the City's Municipal. Code, The Ordinance was amended by the City Council on September 1, 2015 (Ordinance No. NS- 2881), and on October 6, 2015 (Ordinance No. NS-2885). B. The Developer is the fee owner of the Property located at 2001 E Dyer Road, Santa Ana, California ("Property"). C. The Developer desires to, at the Developer's sole cost and expense, develop a one thousand two hundred and twenty one (1122_1) unit rental apartment project on the Property ("Project"). D. On October 12, 2015, the Planning Commission recommended approval, with the City Council affirming the Commission's action and voted to adopt a resolution and ordinances approving the Project on February 3, 2016. Incluslonary Housing Agreement - In -Lieu Fee Payment Page 9 City of Santa Ana 25D-5 The Council actions included the certification of Final EIR No. 2015-01, Amendment Application No. 2014-4, Development Agreement No. 2016-3, General Plan Amendment No. 2015-3 and Vesting Tentative Tract Map No. 2015-3, which set forth the approvals for the Project. E. On February 29, 2016, the Program Director, acting on behalf of the City, approved an Inclusionary Housing Plan that was prepared by the Developer in accordance with the requirements imposed by the Ordinance and the Administrative Procedures Manual established by the City Council to implement the Ordinance requirements. F. This Inclusionary Housing Agreement, when fully executed by the City and the Developer and recorded, is intended to satisfy the requirement that the Developer enter into an Inclusionary Housing Agreement, as set forth in the Ordinance and the conditions to City Approvals. NOW, THEREFORE, in consideration of the mutual promises set forth in this Inclusionary Housing Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the City and the Developer, the Parties, agree as follows: DEFINITIONS OF TERMS The following words, terms and phrases are used in this Inclusionary Housing Agreement, as follows, unless the particular context of usage of a word, term or phrase requires another interpretation. Administrative Procedures means the regulations promulgated by the Executive Director pursuant to the Ordinance. Administrative Procedures Manual is the Affordable Ownership Housing Administrative Procedures Manual W Developer Requirements dated January 2015, which has been prepared by the City for the implementation and enforcement of the Ordinance. A copy of the Administrative Procedures Manual shall be maintained on file with the City, and shall be provided to each Developer of Inclusionary Units. City means the City of Santa Ana, California, Induslonary Housing Agreement - In -Lieu Fee Payment Page 2 City of Santa Ana 25D-6 City Approvals are defined as the entitlement approvals and the Inclusionary Housing Plan that must be approved by the Program Director prior to the issuance of building permits for the Project. City Council means the City of Santa Ana City Council. Default means the failure of a Party to perform any action or covenant required by this Inclusionary Housing Agreement within the time period provided herein following notice and opportunity to cure, as set forth in Article 3 — Section I of this Inclusionary Housing Agreement. Developer means the developer of the Project. Effective Date means the date on which this Inclusionary Housing Agreement is approved and executed by appropriate authorities of the Developer and the City; and this Inclusionary Housing Agreement is delivered to the Developer. Executive Director is the Executive Director of the Community Development Agency of the City, The Executive Director, or designee, has the ultimate authority to evaluate appeals submitted in relation to the Administrative Procedures. Exhibits means the exhibits to this Inclusionary Housing Agreement, which are listed in Article 1 - Section V. Inclusionary Housing Fund means a separate fund of the City which is codified in Article XVIII.1 Section 41-1909 of the City's Municipal Code. The fund was established for the specific purpose of providing the City with funds to assist in the development of housing that is affordable to low and moderate income households. The allowable uses of Inclusionary Housing Funds, and the related reporting are described in Attachment I of the Administrative Procedures Manual. Inclusionary Housing Plan means a plan submitted for approval to the Program Director that details the manner in which the Inclusionary Housing obligations will be fulfilled by the Project. The Inclusionary Housing Plan form is presented in Attachment B of the Administrative Procedures Manual, and also attached as Exhibit 3 to this Inclusionary Housing Agreement. In -Lieu Fee refers to a fee that may be paid by the Property Owner in specific circumstances in lieu of providing Inclusionary Units within a Project. These Inclusionary Housing Agreement - In -Lieu Fee Payment Page 3 City of Santa Ana 25D-7 circumstances are identified in Section II -A of the Administrative Procedures Manual. Ordinance means the Housing Opportunity Ordinance originally adopted by the City Council on November 28, 2011, and as amended by the City Council on September 1, 2015, in Ordinance No. NS-2881, and on October 6, 2015, in Ordinance No. NS-2885, which is codified in Article XVI11.1 Section 41-1900 et seq. of the City's Municipal Code. Party and Parties mean the City and the Developer as parties to this Inclusionary Housing Agreement. Program Director has the day-to-day authority for making determinations related to the Ordinance and Administrative Procedures Manual. The Program Director will be appointed by the Executive Director. Project means the multi -family housing project proposed to be developed on the Property at the Developer's sole cost and expense, as further described and defined in Recital C. Property means the real property, as shown on Exhibit 2 attached to this Incluslonary Housing Agreement, on which the Project is to be developed, for which the legal description is provided in Exhibit 1 to this Incluslonary Housing Agreement, and as further described and defined in Recital B. Indusionary Housing Agreement - In -Lieu Fee Payment Page 4 City of Santa Ana 25D-8 ARTICLE 1 PARTIES; REPRESENTATIONS AND WARRANTIES; EFFECTIVE DATE; RECITALS; AND EXHIBITS I. Parties to this Inclusionary Housing Agreement I -A. City. The City is a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California. The address of the City, for the purposes of this Inclusionary Housing Agreement, is: City of Santa Ana Community Development Agency 20 Civic Center Plaza, M-26 Santa Ana, California 92701 Attention: Program Director Facsimile Number: (714) 647-6549 I-B. Developer. The Developer is a Delaware limited liability company. The principal office and address of the Developer, for the purposes of this Inclusionary Housing Agreement, is: Drew Colquitt Alliance Residential Company 450 Newport Center Drive, Suite 550 Newport Beach, CA 92660 Telephone Number: 949-706-8487 II. Developer Representations And Warranties The representations and warranties of the Developer contained in Article 1 — Section II shall be based upon the actual knowledge of the Developer as of the Effective Date, and are true and correct as of the Effective Date. The Developer's liability for misrepresentation or breach of warranty, representation Inclusionary Housing Agreement - In -Lieu Fee Payment Page 5 City of Santa Ana 25D-9 or covenant, wherever contained in this Inclusionary Housing Agreement, shall survive the execution and delivery of this Inclusionary Housing Agreement. The Developer hereby makes the following representations, covenants and warranties, and Developer acknowledges that the execution of this Inclusionary Housing Agreement by the City has been made in material reliance by the City on such covenants, representations and warranties: II -A. The Developer is a Delaware limited liability company, lawfully entitled to do business in the State of California and the City. The Developer has the legal right, power and authority to enter into this Inclusionary Housing Agreement and the instruments and documents referenced herein and to consummate the transaction contemplated hereby. The persons executing this Inclusionary Housing Agreement and the instruments referenced herein on behalf of the Developer hereby represent and warrant that such persons have the power, right and authority to bind the Developer. 11-8. The Developer has taken all requisite action and obtained all requisite consents In connection with entering into this Inclusionary Housing Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required for the Developer's authorization to enter into this Inclusionary Housing Agreement. II-C. Neither the execution of this Inclusionary Housing Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument, or other obligation to which the Developer is a party or by which the Developer may be bound, or to the best of the Developer's knowledge, under any law, statute, ordinance, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to the Developer or to the Property. II-D. This Inclusionary Housing Agreement is, and all agreements, instruments and documents to be executed by the Developer pursuant to this Inclusionary Housing Agreement shall be duly executed by, and to the best of the Developer's knowledge, are or shall be valid and legally binding upon the Developer and enforceable in accordance with their respective terms. Inolusfonary Housing Agreement . In -Lieu Fee Payment Page 6 City of Santa Ana 25D-10 III. Effective Date This Inclusionary blousing Agreement is dated February 7, 2017, for reference purposes only. This Inclusionary Housing Agreement shall not go into effect before the Effective Date. IV. Recitals The Recitals set forth above are true and correct, The Recitals are incorporated into this Inclusionary Housing Agreement in their entirety by this reference. V, Exhibit List The following is a list of the exhibits attached to this Inclusionary Housing Agreement. Each of the exhibits is incorporated by reference into the text of this Inclusionary Housing Agreement. Exhibit 1 Legal Description of Property Exhibit 2 Site Map Depicting Property and Zoning Designations Exhibit 3 Inclusionary Housing Plan nduslonary Housing Agreement - In -Lieu Fee payment Page 7 City of Santa Ana 25D-11 ARTICLE 2 INCLUSIONARY HOUSING COVENANTS Developer Compliance with the Ordinance The Developer acknowledges that the City has provided the Developer with copies of the Ordinance and the Administrative Procedures Manual. The Developer is familiar with the requirements of all the foregoing documents and shall ensure that the Project complies in all material respects with this fnclusionary Housing Agreement and the requirements set forth in all the foregoing documents. In -Lieu Fee Developer's payment of the in lieu fee shall be paid in phases consistent with the phases of development set forth in Section 5.8 of the Project's Development Agreement. The Developer shall pay the applicable in lieu fee for each phase of the Project, based on the habitable space within that phase of the Project, prior to the issuance of the first building permit for that phase of the Project. Specifically, the Developer will comply with the Housing Opportunity Ordinance by paying an in lieu fee of $9.35 per habitable square foot. The current estimate of the fee that will be paid for each phase and the total fee is indicated in the table below. The actual final in lieu fee amount for each phase will be determined at the time of payment for that phase based on the habitable square footage indicated on the final plans for that phase, Project Phase Estimated Fee Estimated Payment Date (Fiscal Year) Phase 1 $2,700,00o February 2017 (FY16/17) Phase 2 $3,250,000 July 2017 (FY17/18) Phase 3 $3,745,725.60 December 2017 (FY17/18) TOTAL $9,695,725.60 Incluslonary Housing Agreement - In -Lieu Fee Payment Page 8 City of Santa Ana 2501-12 The timing and order of the Project's phasing schedule, including the timing for the corresponding payment of the In Lieu Fee, may only be modified if agreed to by both parties, as provided for in the Project's Development Agreement. Incluslonary Housing Agreement - In -Lieu Fee Payment Page 9 City of Santa Ana 25D-13 ARTICLE 3 DEFAULTS AND REMEDIES Default If either Party defaults with regard to any provision of this Inclusionary Housing Agreement, the non -defaulting Party shall serve written notice of such default upon the defaulting Party. If, after the service of written notice of such default, the defaulting Party does not cure such default within thirty (30) calendar days after service of the notice of default (or, if such cure reasonably takes longer than thirty (30) days, if such cure has not been commenced within the thirty (30) day period or is not diligently completed within a reasonable time, not to exceed an additional sixty (60) calendar days), the defaulting Party shall be in Default of the terms of this Inclusionary Housing Agreement, and shall be liable to the other Party for damages caused by such Default. Alternatively, the non -defaulting Party, at its option, may institute an action for specific performance of the terms of this Inclusionary Housing Agreement. Legal Actions In the event of a breach or potential breach of this Inclusionary Housing Agreement requirements, in addition to any other rights or remedies, either Party may institute legal action to cure, correct or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purposes of this Inclusionary Housing Agreement. II -A. The City's actions may include, but are not limited to, the following: The following legal actions: a. Actions to enforce compliance with this Inclusionary Housing Agreement requirements and to enjoin any actions by the Developer that violate this Inclusionary Housing Agreement requirements; b. Actions to disapprove, revoke or suspend any permit, including a Building Permit, Certificate of Occupancy or other discretionary Inclusionary Housing Agreement - In -Lieu Fee Payment Page 10 City of Santa Ana 25D-14 approval applicable to the phase of the Project that is alleged to be in Default of this Inclusionary Housing Agreement; C. Injunctive relief and damages; and d. Civil citations with monetary penalties for violations of the Inclusionary Housing Agreement. 2. All such restitution shall be made to the City, Any funds received by the City under this provision of this Inclusionary Housing Agreement shall be placed in the City's Inclusionary Housing Fund. 3. The City's actions set forth in this Article 3, Section 11-A shall be taken only with respect to the Project Phase(s) that is/are alleged to be in Default. The City may not take action against Project Phase(s) that have completed its/their respective inclusionary housing obligation(s) through the timely tendering of payment of the In Lieu Fee for the Project Phase(s). II-13. The laws of the State of California shall govern the interpretation and enforcement of this Inclusionary Housing Agreement. II-C. In the event that any legal action is commenced by the Developer against the City, service of process on the City shall be made by personal service upon the Clerk of the City Council, or in such other manner as may be provided by law. II-D. In the event that any legal action is commenced by the City against the Developer, service of process shall be made by personal service on the Developer's designated agent at such address as may be specified in written notice to the City, or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. III. Rights and Remedies are Cumulative The rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party. Indusionary Housing Agreement - In -Lieu Fee Payment Page 11 City of Santa Ana 25D-15 ARTICLE 4 GENERAL PROVISIONS Notices, Demands and Communications Between the Parties Any and all notices, demands or communications submitted by any Party to another Party pursuant to, or required by, this Inclusionary Housing Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, to the address of the City and Developer, as applicable, as designated in Article 1 — Section I of this Inclusionary Housing Agreement. Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may from time -to -time designate as provided in this Section. Any notice, demand or communication shall be deemed to be received by the addressee, on the day that it is personally delivered, if dispatched by messenger, or two (2) calendar days after it is placed in the United States mail. In addition to the submission of notices, demands or communications to the Parties via United States mail, copies of all notices shall also be delivered by facsimile to the facsimile numbers designated in Article 1 — Section I. II. Conflict of Interest No council member, official, contractor, consultant, attorney or employee of the City having any conflict of interest, direct or indirect, related to this Inclusionary Housing Agreement, or in the development of the Property, shall participate in any decision relating to this Inclusionary Housing Agreement. The Parties represent and warrant that they do riot have knowledge of any such conflict of interest. III. Non -liability of City or City Officials and Employees No council member, official, contractor, consultant, attorney or employee of the City shall be personally liable to the Developer, any voluntary or involuntary successors and assignees, or any lender or other party holding any interest in the Property, in the event of any default or breach by the City, or for any amount Inclusionary Housing Agreement - In -Lieu Fee Payment Page 12 City of Santa Ana 25D-16 which may become due to the Developer or to its successors or assignees, or on any obligations arising under this Inclusionary Housing Agreement. IV, Indemnification The Developer agrees to indemnify and hold the City, and their officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to any negligent or wrongful act or omission of the Developer in performing its obligations hereunder. The City agrees to indemnify and hold the Developer and its officers, employees and agents, harmless from and against all damages, judgments, costs expenses and fees arising from or related to any negligent or wrongful act or omission of the City in performing its obligations hereunder, V. No Waiver Failure to insist upon strict compliance with any of the terms, covenants, conditions and restrictions hereof on any one occasion shall not be deemed a waiver of such term, covenant, condition or restriction. Any waiver or relinquishment of rights or powers hereunder at any one time or more times shall not be deemed a waiver or relinquishment of such other rights or powers at any other time or times. VI. Attorneys' Pees and Costs If either Party hereto files any action, or brings any action or proceeding against the other arising out this Inclusionary Housing Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and costs. The recovery shall be treated as an element of its costs of the suit, and not as damages. The amount of the recovery shall be fixed by the court in such action or proceeding, or in a separate action or proceeding brought to recover such attorneys' fees and costs. VII. Jurisdiction and Venue Any legal action or proceeding concerning this Inclusionary Housing Agreement shall be filed and prosecuted in the appropriate State of California court in Orange County, California. Each Party hereto irrevocably consents to the personal jurisdiction of that court. The City and the Developer each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or Inaluslonary Naueing Agreement - In-Llou Foo Payment Page 13 City of Santa Ana 25D-17 jurisdiction, including without implied limitation, federal district court due to any of the following: Any diversity of citizenship between the City and the Developer; or 2. The fact that the City is a party to such action or proceeding; or 3. That a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the Developer and the City specifically waive any rights provided to it pursuant to California Code of Civil Procedure 394, The Developer acknowledges that the provisions of this Article 3 -- Section VII are material consideration to the City for its entry into this Inclusionary Housing Agreement, in that the City will avoid the potential cost, expense and inconvenience of litigating in a distant forum. Vill. Successors and Assigns This Inclusionary Housing Agreement shall be binding upon, and inure to the benefit of, the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. IX. No Third Party Beneficiaries The performance of the City's and the Developer's respective obligations under this Inclusionary Housing Agreement are not intended to benefit any party other than the City or the Developer, except as expressly provided otherwise herein. No person or entity not a signatory to this Inclusionary Housing Agreement shall have any rights or causes of action against any Party to this Inclusionary Housing Agreement as a result of that Party's performance or non-performance under this Inclusionary Housing Agreement, or for the enforcement of any provisions of this Agreement, except as expressly provided otherwise herein. X. Entire Agreement This Inclusionary Housing Agreement integrates all of the terms and conditions mentioned herein or incidental hereto. This Inclusionary Housing Agreement supersedes all negotiations or previous agreement between the Parties with respect to all or any portion of the Property and the Project's compliance with its inclusionary housing obligations as specifically set forth herein. Inclusionary Housing Agreement . In -Lieu Fee Payment Page 14 Glty of Santa Ana 25D-18 XI. Recordation The Developer and the City agree to permit recordation of this Inclusionary Housing Agreement, against the Property in the Office of the County Recorder of Orange County, California. The legal description for the Property is provided in Exhibit 1 to this Inclusionary Housing Agreement, XII. Termination Except as set forth elsewhere, this Inclusionary Housing Agreement shall be terminated after Developer's payment of all required in -lieu fees to City. Upon the termination of this Inclusionary Housing Agreement, following Developer's tender and City's receipt of the final inclusionary housing In Lieu Fee payment for the final Project phase, the Developer shall have no further obligations or liability hereunder. The City and the Developer agree to promptly execute, acknowledge and deliver for recordation any documents that may be necessary to remove this Inclusionary Housing Agreement as encumbrance against title to any portion of the Property. Inclusionary Housing Agreement - In-Lleu Fee payment Page 15 City of Santa Ana 25D-19 IN WITNESS WHEREOF, the Parties hereto have duly executed this Inclusionary Housing Agreement as of the dates set forth below. SIGNATURE PAGE TO INCLUSIONARY HOUSING AGREEMENT ATTEST: Maria Hulzar, Clerk of the Council APPROVED AS TO LEGAL FORM: Am City Attorney CITY: CITY OF SANTA ANA A California Charter City and Municipal Corporation la Name: Its: Irk RECOMMENDED FOR APPROVAL: ROBERT C. CORTEZ Deputy City Manager indusionary Housing Agreement - In -Lieu Fee Payment Page 16 City of Santa Ana 25D-20 SIGNATURE PAGE TO INCLUSIONARY HOUSING AGREEMENT HERITAGE VILLAGE OC, LLC: A Delaware limited liability company LIN 1►FT�R� Its: Date: In Name: Its: Date: Indusionary Housing Agreement - In -Lieu Fee Payment Page 17 City of Santa Ana 25D-21 EXHIBIT 1 LEGAL DESCRIPTION OF PROPERTY I nclusionary Housing Agreement— In -Lieu free Payment Clty of Santa Ana 25D-22 EXHIBIT A LE2.LL DESQ- I 10 PARCEL 2, U 1107,11 ON 6<H16IY'S.2- Arg'N',b 00 Lai UAIE AOAASTUPIr 07.013 RE99R000.IAAAE 11, ICAB A5 RI9TAVAIENT III N-1RSD;U CF OIPkU4 REC1801 6F 0,411 CANI4, 'AUFORi 11J. VIEPr *05E MAISONS CNIV6'tEO N AAA on 0 M,1HU Ao pA PANT DEFY 100I NANO Id, Y010 A5 PI818UId Eb1I NO %01001 OP 000,11. RUC007. CID PAINS ALL ON., ON. RIGHTS, 4AiEA,0.S, NIBIRSAL Pni f%. IbINRA. 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IDrg PI ulM IFT.RI, PAGE ISN OF OFFICIAL ACDnI 1611, 311,r11,v 11 .141nL�,..111 ryn.1 i1\.: 1:11..�1'1 25D-23 EXHIBIT 2 SITE MAP DEPICTING PROPERTY AND ZONING DESIGNATIONS m5lusionary Housing Agreement— In -Lieu Fee Payment City of Santa Ana 25D-24 EXHIBIT B a 25D-25 EXHIBIT 3 INCLUSIONARY HOUSING PLAN Induslonary Housing Agreement— In-Ueu Fee Payment City of Santa Ana 25D-26 Plannng and Building Agency j Planning Division 20 Clvlo Center Plaza l P.p, 8ax 1888 (M-20) Santa Ana, CA 92702 i I (714) 847.8804 wwwsanta•ana.or'g INCLUSIONARY HOUSING PLAN OWNERIAPPLICANT INFORMATION Legal Owner Heritage Village PC1 425-2851rwoCC/ (714) Full name of Pelson, Area Code—ona —Number 1945 Port Chelsea Place, Newport Beach,CA 92660 Melling Addroas �TTI Area Code FaxFax Numh—.--. Applicant [Ieritage Village OC ISC 1 71.4) 425-2851 Full name of Person, Firm or Corporation Arse Code Phone Number 1945 Port Chelsea, Place, Newport Beach,CA 92660 Mailing Address —Tax Area Code Num-�'�m e� --� I Contact Person Pam Sa etto, Sa etto Real Estate Solutions psapetto�sapettorealestate com Full name of Person. Firm or Corporation Email address 18662 MacArthur Blvd, Suite 2o0. Irvine, Ca 92612 Nlailing Address I 949 25.2.084.1 7( 14 ) 815-7771 Araa aJa Phone Number Area Gada Mdblla Phone 4Iumber Area Code PROJECT DESCRIPTION Project Address: 2001 E Dyer Rd, Santa Ana, CA Assessor Parcel Number(s):. 430-211-13, 430-221-01, 430-221-02 Total number Of units proposed: .-1221 --- Number of Rental Units: �1221 _ Number of For Sale units: 0 Number of 15% InClusionary obligation: Identify the grass livable area of the proposed project (Including private balconies, decks and patios). 1,036,976 square feet Will the project be constructed in phases? X yes No Is a density bonus being requested? yes—X No CITY APPROMS (if applicable) I 1MCLU53pNARY HOUSING PLAN NO, : 0APPROVE 0 DENY Date: /� l tt(� Signature: 9:PInnn[1MCxriaol-Q0WI10r FernIsV100app116x110n Paga 1 of 4 i!'15 25D-27 HOUSING ALTERNATIVES Select the applicable alternatives to indicate how the project will comply with the Inclusionary housing requirement: On -site construction of inclusionary units _X In -lieu fee payment for entire obligation' _ In -lieu fee payment for fractional unit Land dedication Note: For development projects with more than 20 units requesting In -lieu fee payment to fulfill their inclusionary obligation, "substantial evidence" that the cost of providing Incluslonary units on site would substantially exceed the amount of the applicable in -lieu fee is to be provided with this application. Please complete the following table(s) as it applies to your project proposal: Pro�r�oe it Rental Fiousinc� pro ects: Number of Unit Size Number of Number of Very -Low Total percent Number of (Square Market Rate Low Income Income Number of Total Bedrooms Feet) Units Units Units of Units Units Studio 587 _ 327 74B 501 - 1121 359 - 3 1434 334 4 5 � - Total 849 1221 I If the calculailon of the number of required incluslonary housing units results In a fracllon, the developer has the option to (a) provide an additional Incluslanaryhousing unit or (b) pay an Irl Llou Fee equal to the percentage represented by the fractional incluslonary housing unit multiplied by the applicable In-Lleu Fee 9:plauning\GladcalAcunter PurrziulHOOappllcatlan Pafla 2 of 1115 25D-28 Proposed QW11 rship Houslna Protects; Unit Size plumber of Number of Tatat P lumber of Is Bledroonls Feet) Market Rate Units Moderate Irnmm� I W+ plumber of i I_:,_ Percent of ,.... ... . Required Exhibits to the Incluslonary Housing Plan A. ❑ Narrative description of the entire project; E. [] Site plan that depicts the entire project (minimum 11" x '17"); C. in Depiction of the location of the inciusionary housing units; and D, ❑ If applicable, a phasing plan that provides for the proportionate number of the total inciusionary housing unit requirement to be built within each phase of the project. E. ❑ If applicable, provide the In -Lieu Calculation Summary for the project. 8:P1unn1n9`i lIVcnl-Caunter FamisuitlOtlpplkdlian Page 3 of 4 1116 25D-29 Property OWNER'S AFFIDAVIT I hereby certify that I am the legally authorized owner of all property involved in this application or have been empowered to sign as the property owner on behalf of a corporation, partnership, business, etc., as evidenced by separate Instrument attached herewith, I hereby grant to the applicant submitting this form full power to sign all documents related to this application, including any conditions or litigation measures as may be deemed necessary. I declare under penalty of perjury that the foregoing is true and correct. Executed on (Date) 11/20/15 at LsAnaeles California Property Owner's Signature ]M __-_ Property Owner's Printed Name Ryaa Ogalnicic APPLICANT'S AFFIDAVIT I hereby certify that the statements furnished above and in the attached exhibits represent the data and information required for this initial evaluation and that the facts, statements and information presented are true and correct to the best of my knowledge and belief. Further, should the stated Information be found false or insufficient, I agree to the return of this form for appropriate revisions, understanding the City of Santa Ana cannot process this form until all applicable information is corrected or provided by the applicant. I hereby certify that I have been legally authorized by the property owner to present this application and to sign on behalf of all documents related to this application, Including any conditions or litigation measures as may be deemed necessary. Note: When the applicant is a corporation, partnership, business, etc., a separate document verifying the authorization to sign for such applicant is required, I declare under penalty of perjury that the foregoing is true and correct. Executed on (pate) at California Applicant's Signature Applicant's Printed Name S:PIanninglCleflCel-Counter Forma1W90appllnalien Page 4 of 1/15 25D-30 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: AGREEMENTS FOR AS -NEEDED INFORMATION TECHNOLOGY PROFESSIONAL SERVICES (STRATEGIC PLAN NO. 7, 2D) CITY MA AGER RECOMMENDED ACTION CLERIC OF COUNCIL USE ONLY: _•s T s, ❑ As Recommended ❑ As Amended ❑ Ordinance on 10' Reading ❑ Ordinance on 2n6 Reading ❑ Implementing Resolution Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute seven as -needed information technology professional services agreements with the firms listed below, each for a one (1) year term expiring February 6, 2018 with the potential for three one-year renewal terms, exercisable by the City Manager and the City Attorney, for a total aggregate amount for all seven consultants, not -to -exceed $3,000,000 annually and $12,000,000 over the life of the agreements if all extensions are utilized, subject to non -substantive changes approved by the City Manager and City Attorney: • The Comdyn Group, Inc. • Scienta Consulting Group, Inc. • Softmaster, Inc. • Bunnell Enterprises (dba Total Network Solutions) DISCUSSION The Ryte Professionals, Inc. Sierra Cybernetics, Inc. Stelarum Studios, Inc. The City of Santa Ana leverages new technology to reduce costs, increase efficiency, and improve service delivery. To facilitate the adoption of new technology, the Information Technology Department utilizes professional and technical services from private sector firms on a project basis to assist in upgrading, replacing, implementing, and supporting information and communications systems. This sourcing strategy is cost-effective and responsive to our customer departments' needs. It allows the Information Technology Department to quickly acquire the specific technical expertise required for a project, while not incurring ongoing fixed costs once it is complete and the specific skills are no longer needed. Additionally, it provides a mechanism to rapidly address changing support responsibilities for critical production systems. Over the next four years, professional and technical services will be necessary to support several planned technology projects. Anticipated„pgc) include upgrading or replacement of the Agreements for As -Needed Information Technology Professional Services February 7, 2017 Page 2 following: Network infrastructure, phone system, server and storage, backup systems, land management system, enterprise resource planning systems, and City's internet and intranet system. A request for proposals (RFP) for Information Technology Professional Services was issued on November 15, 2016 and closed on December 8, 2016. The RFP documents were made available on the Purchasing Division's website. A total of 30 responses received from potential vendors, none of which were headquartered in Santa Ana. A team comprised of the Information Technology Department and a Finance and Management Services Department manager evaluated the proposals based on cost and demonstrated competence working with specific applications utilized by the City, as well as in providing other required technical services. Based on the review of the submitted proposals received, the team selected the recommended vendors. Three of the vendors, Comdyn, Softmaster, and Stellarum, currently provide services to the City and were selected to continue to be approved vendors based on their proposals. The other four vendors will be new vendors to the City. Multiple agreements are recommended to ensure a pool of qualified candidates is readily available for the Information Technology Department to quickly deliver technical services as they are needed. The City's professional services agreement will be used for each agreement with the selected vendors. A copy of the agreement is attached. The City currently has budgeted 15 full-time and part-time consultants providing services in all areas of technology including desktop support, network support, application support, and Police IT support. If this item is not approved, it would not only disrupt ongoing improvement projects, but would severely impact the ability of the Information Technology Department to provide essential operations. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #7 — Team Santa Ana, Objective #2 (establish communications plans to engage and inform employees and the community about City Activities), Strategy D (Invest in software/resources that will help streamline the flow of information to City staff and the public). FISCAL IMPACT Funds are available in the following Information Technology, Contractual Service Accounts for FY 2016-17 in the amount of $1,000,000 and funds will be budgeted and available in FY 2017-18 for $3,000,000, FY 2018-19 for $3,000,000, FY 2019-20 for $2,000,000 as follows: 25E-2 Agreements for As -Needed Information Technology Professional Services February 7, 2017 Page 3 Contract Term Accounting Unit FY 16/17 10920140-62302 $280,600 10920143-62302 $167,000 10920144-62302 $100,000 10920145-62302 $183,000 10920147-62302 $183,000 10920148-62302 $20,000 01114425-62300 $67,000 TOTAL $1,000,000 4 Jack iulla Chie echnology Innovations Officer Information Technology Department FY 17/18 FY18/19 $500,000 $300,000 $550,000 $550,000 $60,000 200 000 $3,000,000 $500,000 $300,000 $550,000 $550,000 $60,000 200 000 $3,000,000 FY19/20 $333,000 $200,000 $367,000 $367,000 $40,000 133 000 $2,000,000 APPROVED AS TO FUNDS AND ACCOUNTS: Y Francisco Gutierrez Executive Director Qb Finance & Management Services Agency Exhibits: 1. Agreement with Comdyn Group, Inc. 2. Agreement with The Ryte Professionals, Inc. 3. Agreement with Scienta Consulting, Inc. 4. Agreement with Sierra Cybernetics, Inc. 5. Agreement with Softmaster, Inc. 6. Agreement with Stelarum Studios, Inc. 7. Agreement with Total Network Solutions 25E-3 25E-4 Exhibit / AGREEMENT TO PROVIDE INFORMATION TECHNOLOGY PROFESSIONAL SERVICES ON AN ON -CALL BASIS THIS AGREEMENT is made and entered into this 7th day of February, 2017 by The Comdyn Group, Inc., a California corporation. ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"), RECITALS A. On November 15, 2016, the City issued Request for Proposal No. 16-140, by which it sought consultants to fiimish information technology ("IT") professional services on an on -call basis. B. Consultant submitted a responsive proposal that was among seven selected by the City. Consultant represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 16-140 and attached herein as Exhibit A. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES On an as -needed basis, and at the sole discretion of City, Consultant shall furnish IT professional consulting services as described in Exhibit A to this Agreement. Consultant's proposal is incorporated by reference as though fully set forth herein. When the need for a temporary technology service arises, the City may contact any or all of the Consultants selected for an agreement under RFP 16-140 through the Order Process outlined in Section 2 below. 2. . ORDER PROCESS When the need for a temporary technology service arises; the City may contact any or all of the Consultants awarded an agreement pursuant to R_FP No. 16-140. City will provide the assignment details and necessary qualifications to the Consultant and a point -of -contact for the assignment. a. The City's point -of -contact is available to answer any questions Consultant(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. b. The Consultant(s) will conduct a search (if necessary), match and qualify process skills (including technology assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. c. The Consultant(s) will provide the City's point -of -contact with, resumes of qualified potential candidates. d. The Consultant(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. e. From the candidates offered by the Consultant(s), the City may elect a telephone or in - person interview with one or more of the potential candidate(s). The City's point -of -contact will get in touch with the Consultant(s) to work out arrangements. 29E-5 f. The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City, g. When the City has identified the candidate that it wished to engage and has notified the Consultant, the Consultant will conduct background checks, and confirm candidate availability; interest in the engagement and acceptance of the terms and conditions of the terms of engagement with the City. h, One the Consultant has completed the checks and confirmations; the Consultant will notify the City and final details will be worked out. i. The City Agreement manager will send a confirming electronic email message to the Consultant as final confirmation of the engagement. j. After a candidate has been accepted but prior to the beginning the engagement, the Consultant will inform the candidate on pertinent Consultant business procedure (e.g. time reporting, requesting time off, personnel benefits, etc,) k. After an engagement starts, the Consultant will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 3.. COMPENSA"PION a. Consultant is one of seven Consultants selected to provide IT professional services on an as -needed basis. Consultants have been selected pursuant to a Competitive RFP process (RFP No. 16-140). The total funds for all IT professional services provided by all seven Consultants is a collective amount not to exceed three million dollars ($3,000,000) per year for a total collective amount not to exceed twelve million dollars ($12,000,000) if all of the extensions are utilized. Consultant understands and acknowledges the following: (1) City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement, It is possible that City may not utilize Consultant's services at all; and (2) Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in the order process but not to exceed the parameters outlined in Consultant's Certification and Proposal Item Pricing' attached hereto as Exhibit B. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards ofperformance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on the date stated above and continue through, February 6, 2018, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for three (3) one (1) year periods upon a writing executed by the City Manager and the City Attorney. If the Agreement is extended, all terms and conditions, including pricing shall remain the same and apply during the extended terms. '-Exhibit C of Consultant's proposal in response to REF No. 16-140. 2 25E-6 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and ,not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultantunder this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at anytime; provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Workers' Compensation Insurance. In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for 29E-7 workers' compensation or to undertake self-insurance, Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d, if Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000;000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iv) Consultant. shall supply City with a fully executed additional insured endorsement, If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to famish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement. Stich termination shall, not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. $. HOLD HARML> SS/INDEMNIFJCATION To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligence or willful misconduct of the Consultant or its, subcontractors, agents, employees; or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages; just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Consultant's indemnification obligations in this section shall survive expiration of this Agreement. Notwithstanding the 4 25E-8 foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify, and hold harmless City, its officers, agents, representatives, and employees against any and all liability or losses, including costs and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright, alleged or contained in the work product or documents provided or used by Consultant under this Agreement. 10, RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 11. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with the performance of services specified under this Agreement. 26E-9 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing_ and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714- 647-6956 With courtesy copies to: Chief Technology Innovations Officer Information Technology Department City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702' And City Attorney City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, CA 92702 Fax (714) 647-6956 To Consultant: The Comdyn Group, Inc. P.O. Box 4406 Thousand Oaks, CA 91359 Fax (805)498-5852 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed asset forth above. If sent by fax, communication shalt be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 25�-10 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter therein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terns or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. IS. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 16. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, City may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be theproperty of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 18. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS Contractor shall perform all requirements under this contract in strict observance of and in compliance with all applicable laws, regulations, ordinances, codes, and any other legislative or statutory requirements. 257E-11 19, NONDISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 20. BACKGROUND INVESTIGATIONS Unless exempted by the City, Consultant will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assig nient with or in support of the Santa Ana Police Department ("SAPD") will be required to pass an SAPD background investigation prior to beginning work with SAPD: Full name, address, phone number, birth date, Social Security number and driver's license number must be furnished to the City upon request. An application for SAPD background must be completed by each prospective contract service person who will be providing on -site services to SAPD. 21. OVERTIME AND HOLIDAYS The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked under this Agreement. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. 22. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 23, PROFESSIONAL LICENSES Consultant shall; throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies, Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such pennits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 259-12 24. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in tact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By:66au,ga A_ i Laura A. Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: Jack Chills Chief Technology Innovations Officer Information Technology Department CITY OF SANTA ANA Gerardo Monet Acting City Manager CONSULTANT: Diana Brown Vice President of Operations The Comdyn Group, Inc. 25t-13 EXHIBIT A 25E-14 EXHIBIT A • SCOPE OF SERVICES CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES DESCRIPTION AND SCOPE OF WORK The City of Santa Ana is soliciting proposals from qualified Proposers who can provide technology contract service personnel and consulting services on an as needed basis for a one- year period, with possible extensions of three (3) additional one-year periods. This term is subject to final approval by the Santa Ana City Council. Services under any resulting agreement will be for the Information Technology Department (ITD), ITD will administer agreement(s) resulting from this RFP. It is anticipated that the services provided through these agreements would be used in five (5) distinct manners: • Provide staff for temporary situations that do not justify the addition of regular City staff. (junior- and senior -level) • Provide temporary contract service personnel with unique technology skills to act as a technical resource to project teams for projects that do not justify the addition of regular staff. • Provide additional resources for situations that exceed the capacity of existing City staff. • Provide project -based consulting and implementation support (fixed or hourly cost). • Provide managed services based on service. (I.e., server support per server, desktop support per PC, etc.) All five (5) situations require highly qualified, technology contract service personnel who perform exceptionally well in their specialties. Technology contract service personnel and consultants will work individually as technical resources or as members of project teams, and will be under the overall general direction of City technology management. In certain instances, sub -projects may be contracted out. 1. OVERVIEW OF EXISTING SYSTEMS a. Infrastructure • About 40 physical Wintel-based servers and 250 + VMware virtualized servers supporting enterprise applications/services, local area networks and various department -specific applications 0 Multiple HP storage systems including Left Hand and SPAR. SAN nodes and clusters utilize !SCSI and Fiber Channel interfaces. RFP 16-140 November 2016 25E-15 • Gigabit Ethernet fiber links through City Hall and connected annex • Multiple network segments supporting more than 24 City operating locations interconnected via a wide area network • Approximately 250 Aruba wireless access points throughout City Hall and most remote City Facilities. Wireless network access is available for City staff and guest access. Switched Ethernet backbone in City Hall connecting City Hall LANs and computer operating in the Central Computer Center Mobile Device Management system utilized to manage and secure 334 personal and City issued smartphones and tablets • The City's telecommunications network serves 22 operating locations through an AT&T network of local, T-1, Fiber Optic and OPX lines with approximately 3,352 equipped voice ports, 40 voicemail ports, 2,104 telephone extensions and 1,773 telephone instruments. • The existing telecommunications infrastructure is comprised of 14 NEC telephone switches (NEAX 2400 IPX, NEAX 2000 IPX, NEAX 2000 IPS), key systems (NEAX INFOSET 408) and 32 VolP telephones plus a CENTIGRAM 640 voice processing system with 40 ports and 120 hours of storage. • The City has adopted the ANSI/EIA/TIA and NEC standards, as well as BICSI design and installation methods for all materials, installation, testing, configuration and documentation of the City telecommunications infrastructure. These guidelines are based upon widely used industry standards such as, but not limited to, EIA/TIA 568, 569, 570, 606A, 607, including all TSB's, and the NEC codes related to Telecommunications Infrastructures. b. Applications • Infor Lawson financial application • Highline FIR/Payrotl application • Laset-[iche document management • ESRI GIS • Cherwell ITSM • IVOS Workers' Compensation • Tdtech CAD and RMS • iNovah cashiering • Systems and Software's enQuesta CIS • Drupal CMS • Various .NET -based homegrown applications • Various Microsoft Access -based applications c. Desktop/Mobile. • Approximately 2,000 Dell desktop and laptop computers • Approximately 300 Apple Whone, Apple iPad and Samsung Galaxy devices RFP 16-140 November 2016 12 25E-16 2. SERVICES BEING SOUGHT The City seeks Proposers to provide contract service personnel with specific technology skills to perform assignments of varying length. Multiple pre -approved Proposers may be contacted to propose resources and a quote for a requested assignment/project. In response to requests from the Information Technology Department, the Proposer(s) shall: a. Research their roster of personnel and/or recruit for potential candidates. b. Screen available candidates in order to match technology skills and work experience with requirements of the City job assignments. c. Confirm candidate qualifications including technology skills, experience, work habits, interpersonal skills, quality of work performed, reference checks, etc. d. Confirm candidate availability for the City assignment. e. Provide the Information Services Division with resumes of screened qualified candidates (identifying skills, work experience and education) and their charge (i.e. bill) rates. f. Upon the City's conditional acceptance of a candidate, conduct background checks (See Section 6.1 for details). g. After a candidate has been accepted but prior to beginning the engagement, inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g. time reporting, requesting time off, personnel benefits, etc.) h. After an engagement starts, monitor their personnel/s' performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. There is no guarantee as to the number of times a Proposer will be used or the dollar amount that will be expended with them. 3. PROPOSER RESPONSIBILITIES a. Proposer(s) will be responsible for all payments and benefits for contract service personnel placed on assignments with the City, including payroll, taxes, other withholding, vacation, other benefits, etc. (See Section 6.13 for details). b. Proposer(s) will be responsible for the conduct of any temporary contract service personnel placed with the City. If, at the sole discretion of the City, a temporary contract service person is determined to be unsatisfactory for any reason, the Proposer will withdraw the individual upon notification by the City. The City will not be charged for the period of unsatisfactory service. c. Proposer(s) will provide training and education programs for their personnel on assignment with the City. This is intended to ensure that these personnel remain technically knowledgeable to perform their assignments for the City. Proposer(s) will provide programs that will promote the retention of their personnel on assignment with the City. PFP 16-140 November 2016 IN 25E-17 4. DESCRIPTION OF TECHNOLOGY POSITIONS TO BE PROVIDED The skills and services will be needed in the technology categories of: • Application& Development Services • Telecommunications Services • User Support Services • Business / Application / Project Consulting Services • Technology Operations &Support Services Specific abilities required will vary depending on theoperations and projects involved. Detailed identification of knowledge, skills, abilities, experience and education will be provided for each assignment with the City. Table 1, below, shows a sample of technology -related positions by category for which the City may seek Proposer(s) to provide contract service personnel. This list is not exhaustive or fixed. As the technology needs of the City change, the technology specialties sought will also change. This list does demonstrate the range and depth of technology fields and positions potentially sought by the City. Contract service personnel and consultants may be expected to perform other related duties not specifically detailed herein or in the City's pre -engagement description of the assignment (at the quoted rate) but that are generally within the scope of the job classification requirements for knowledge skills and abilities specified. The City does not require that each Proposer be able to provide candidates for all the range and depth of technology job positions covered by this RFP. Each Proposer will be asked in its proposal to identify the technology category or categories for which it can provide qualified candidates or consulting services to the City. RFP 16-140 November 2016 14 25E-18 Table 1 - Potential Technology Specialties by Category (caution: Listi5 not nomprenensmei Applications & Development Services • Systems Architect and Engineer • Systems Analyst • Programmer/Developer (MS Windows Visual Studio and SQL for client/server environment) • Web Developer(.NET/PHP) • Database Administrator (MS SOL) • Document Imaging Application Specialist + Business Intelligence Specialist • Mobile Apo developer (iOS & android OS) Telecommunications Services • Telephone System Administrator • Telephone System Engineer • Voice System Engineer (Centigram) • Cabling Installer User Support Services • Help Desk Specialist • IT Support Specialist (Desktop) • Mobility Technology Coordinator • IT Support Intern RFP i6-140 November 2016 Business / Application / Project Consulting Services • IT Business Analyst (with municipal government experience) • Project Lead (for deployment of purchased software application) • Project Lead (for software development project) • Technology Consultant for specialized application (See Section Aabove, e.g., Lawson, HighLine, etc.) • System Evaluation & Selection Consultant Technology Operations & Support Services • Infrastructure Architecture / Planning Engineer + Network Engineer (Cisco) + Network Security Engineer (Cisco) • Network Specialist — LAN Administrator (Cisco) • MS Exchange Engineer • Anti -Virus & Anti-SPAM Services. Administrator • Data Center Engineer (HP servers, Win OS, VMware, HP SAN) • Wireless infrastructure. Engineer (Aruba) iFF 25E-19 S. ORDER PROCESS When a need for temporary technology contract services or consulting arises, the City may contact any or all of the Proposer(s) (those Proposers selected and awarded an agreement) a, The City will provide the assignment details and necessary qualifications to the Proposer(s) and a point -of -contact for the assignment. b, The City's point -of -contact is available to answer any questions Proposer(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. c. The Proposer(s) will conduct a search (if necessary), match and qualify process skills (including technical assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. d. The Proposer(s) will provide the City's point -of -contact with resumes of qualified potential candidates. e. The Proposer(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. f. From the candidates offered by Proposer(s), the City may elect to conduct a telephone or in -person interview with one or more of the potential candidate(s). The City's point -of -contact will get In touch with the Proposer(s) to work out the arrangements. g. The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. h. When the City has identified a candidate that it wishes to engage and has notified the Proposer, the Proposer will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terms and conditions of an engagement with the City. I. Once the Proposer has completed the checks and confirmations, the Proposer will notify the City and final details will be worked out. j. The City agreement manager will send a confirming electronic mail message to the Proposer as final confirmation of the engagement. k. After a candidate has been accepted but prior to beginning the engagement, the Proposer will inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g. time reporting, requesting time off, personnel benefits, etc.) I. After an engagement starts, the Proposer will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 6. TERMS & CONDITIONS The following terms and conditions will be included in any subsequent agreement with the City, These terms and conditions are being repeated in this RFP due to their special impact in defining a contractual relationship between prospective Proposer(s) and the City. 6.1 Background Investigations Unless exempted by the City, Proposer(s) will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department (SAPD) will be required to pass a SAPD background investigation prior to beginning work with SAPD, Full name, address, phone number, birth date, Social Security number and driver's license number RFP 16-140 November 2016 16 25E-20 must be furnished to the City upon request. An application for SAPID background must be completed by each prospective contract service person who will be providing on -site services to SAPD. 6.2 Certificate of Insurance Proof of insurance is NOT required to be submitted with the proposal, but it will be required prior to the City's award of any Agreement. Proposers should carefully consider the City insurance requirements and the related documentation included in the Sample Agreement (See Appendix B) and in the Sample Insurance Forms (See Appendix G). Proposals should be based on 'full and complete compliance with all parts and directions relating to these insurance requirements. 6.3 City Responsibilities There is no guarantee as to the number of times an agency will be used or the dollar amount that will be expended with them. 6.4 Cancellation The agreement may be cancelled by either party with 30 days' written notice. 6.5 Contract Service Personnel & Consultants This Agreement shall not render the Contract Service Personnel and Consultants an employee, partner, agent of or joint venturer with the City for any purpose. Any Contract Service Personnel and Consultant is and will remain an independent contractor in (his or her) relationship to the City. The City shall not be responsible for withholding taxes with respect to the Service Personnel's and Consultant's compensation hereunder. The Contract Service Personnel and Consultant shall have no claim against the City hereunder or otherwise for vacation pay, sick leave, retirement benefits, Social Security, worker's compensation, health or disability benefits, unemployment insurance benefits or employee benefits of any kind. 6.6 Documents to Be Construed Together The Request for Proposals, the Proposal and all documents referred to in the complete specifications and the Agreement to be entered into between the Proposer and the City, and all modifications of said documents, shall be construed together as one document. 6.7 Errors and Omissions Proposer(s) shall not be allowed to take advantage of any errors in or omissions in the Request for Proposal. Full instructions will be given if such error or omission is discovered and called in a timely manner to the attention of the City, 6.6 Evidence of Financial Ability At the option of the City, Proposers may be required to furnish evidence of sufficient financial ability and responsibility to enable them to fulfill this Agreement. 6.9 Firm Commitment of Availability of Service Once a proposal is opened, a Proposer is otherwise expected to maintain an availability of service as set forth in its proposal for the stated prices for the full Agreement term after date of opening proposals. RFP 16-140 November 2016 17 25E-21 6.10 Intellectual Property Rights All work performed by temporary contract service personnel/consultants for the City becomes the sole property of the City of Santa Ana, and the City retains all rights to that work. 6.11 Invoices Proposer(s) will submit invoices upon completion of work performed. As a basis for payment of invoices, temporary staff/consultants must provide Proposer(s) with a timesheet for each billing period, signed by their City of Santa Ana supervisor, This timesheet must show the project assignments during the billing period and hours worked for each project. All invoices submitted for payment must show the breakdown of hours actually worked for each individual according to their timesheets. The City will pay invoices within 30 days after approval by the City Agreement administrator, No purchase orders will be issued. 6.12 Labor and Wage Requirements The Proposer shall be fully responsible for ensuring: a) The payment of all salaries, wages, bonuses, Social Security, Workers' Compensation taxes, Federal and State Unemployment Insurance, and any and all taxes relating to the personnel furnished under this agreement. b) Withholding State and Federal Income taxes c) F.I.C.A. taxes d) Providing Workers' Compensation for its personnel e) Compliance with all other laws relating to employees and contract personnel, such as wage and hour laws, safety and health requirements, and collective bargaining laws. 6.13 Orders The City does not guarantee any specific number of hours or assignments will be made during the life of this agreement. City requirements for temporary services not specified in this proposal will be contracted on the open market in the customary manner. Proposer(s) will be required to provide some mutually acceptable means for the City to contact them during normal business hours of 8:00 a.m. to 5 p.m. Pacific Time, Monday through Friday. 6.14 Overtime and Holidays The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. RFP 16-140 November 2016 18 25E-22 The following are City Holidays • New Year's Day • Martin Luther King Jr. Day • Presidents' Day • Memorial Day • Independence Day • Labor Day • Veterans Day • Thanksgiving Day (2 days) • Christmas Eve • Christmas Day 7, SUPPLEMENTAL QUESTIONS Proposer must include: a. Short summary description of the organization b. Short summary description of the ownership c. Description of the major service offered by the Proposer's firm d. List of acceptable invoicing frequencies. (i.e., weekly, bi-weekly, semi-monthly, monthly) e. The number of years that the Proposer has been in the business of providing temporary technology contract service personnel and/or consulting services of the kind sought by the City. (If company name or ownership has changed of the period cited, please note and explain.) I. Description of the overall qualifications of the Proposer, including its experience and its ability to provide temporary technology contract service personnel and/or consulting services g. Description of any unique qualifications and experience that distinguish the Proposer's ability to provide temporary technology staffing and/or consulting h. Confirmation of the Proposer's willingness and capability to agree to and to follow the terms and processes outlined in this RFP and any resulting agreement including all administrative and billing procedures of the City i. Description of any other information the Proposer feels is relevant in helping the City gauge the Proposer's business stability j. No more than three (3) samples of the style of resumes that your firm would provide to clients. (This will allow the City to assess the readability of the formats and the usefulness of contents of the resumes the City could expect from the Proposer. These resumes will not be used to rate potential candidates.) k. List of the types of technology specialties for which the Proposer provides temporary placements or consulting services. (For example, if you only provide consulting services for a specific product or skill -set, please specify,) I. List of any unique qualifications and/or experience that distinguish the Proposer's ability to provide temporary Contract Service Personnel or consulting services in the various technology RFP 16 140 November 2016 19 25E-23 fields/specialties. For example, a Proposer may have the capability to provide emergency placements with 24 hours, to conduct technical qualifying testing, to use highly -qualified technology screeners to evaluate and rate candidates'skills, to employ special techniques to track a placed contractor's performance, to provide on -call for specialized technology needs, etc. These are examples only and not mandatory services or qualifications, m. Description of Proposer's methods used to Identify potential candidates n. Description of Proposer's methods used to screen candidates and to match their qualifications against the requirements of a City job assignment o. Description of Proposer's methods used to assess and confirm candidate's technology skills/knowledge, experience, work habits, interpersonal skills, etc. p. Description of Proposer's methods used to establish candidate availability with respect to the project schedule of the City assignment q. Description of the quality (as opposed to quantity) of the candidates within a job assignment (e.g. City seeks senior network engineer) that the Proposer can provide r. Explanation of any training opportunities made available by the Proposer for technology personnel engaged with the City s. Explanation of any effort the Proposer takes to ensure that the technology knowledge and skills of its staff engaged with the City are maintained and refreshed during long term engagements with the City t. Description of any programs and benefits provided by the Proposer to its Contract Service Personnel and Consultants engaged with the City that ensure their retention for the period required by the City u. Confirmation that there are no penalties to the City, Contract Service Personnel or consultants if the individual was to become a City employee. If there is a minimum amount of contract time that would' need to occur, specify that amount of time (e.g, After six months of placement, Contract Service Personnel may be hired without any penalties, etc.). RFP 16-140 November 2016. 20 25E-24 EXHIBIT B 25E-25 EXHIBIT C - PROPOSERS CERTIFICATION and PROPOSAL ITEM PRICING CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGYAS-NEEDED PROFESSIONAL SERVICES Certification - I certify that I have read, understand and agree to the terms and conditions of this Request for Proposals, I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests. I understand and agree that I am responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal. 1, APPLICATION/TECHNOLOGY-SPECIFIC PRICING Complete this table if your organization consists of permanent employees who specialize in a specific application or technology and have fixed standard pricing. For example, you may provide a Lawson Technical resource or a HighLine functional resource. These should be actual committed rates that would good for theentireterm of the agreement, including the optional renewals. Onsito rates "should be fully inclusive of all travel costs. Add as many rows as necessary Application/Technology Resource Type hourly Rate Oflsite tto travel Hourly Rate Onsite Inc travel Minimum Hours The Con7dyn Group does not _ maintain permanent employees on the bench and therefore we are not limited to specific skill sets or technologies. We also have a database of Highly qualified andidates that offer a wide variety of expertise who we maintain contact with for their availability. 2. GENERAL STAFFING PRICING Complete these tables if your organization hires temporary employees or subcontractors to fill assignments (staffing firm model) for each of the Technology Specialties listed in Table 1, Exhibit A, Section 4. For example, you may provide a System Analyst or a Network Engineer. Estimated Rates These rates are just estimates based on current engagements that you have. Actual rates will be quoted at the time of order placement per the process described in Exhibit A, Section 5. Add as many Crows as necessary, 27 25E-26 Technology Specialty Estimated Hourly Rate Offslte no travel Estimated Hourly Rate 2!1 inc.travel _ Minimum Hours r Network Engineer $70-93/hr. NfA 401E, av . Systems Administrator $40-85/hr, N/A 40 hr. av Sr. S steins En ineer $70-93/hr. N/A 40 lu. av . atacenter/Network Operations $70-95/hr. N/A 40 hr. avg. Markup Percentages This reflects the markup percentages used by your firnl to when staffing Contract Service Personnel with the City. The first row reflects the markup if the Proposer(s) are asked to find a resource, Since this scenario requires additional marketing costs, it is expected the markup will be higher, The second row should reflect the markup if a resource has already been identified and no marketing is required. Furthermore, identify the different markup percentages between a W2 employee and Corp -to -Corp resource. Finally, estimate approximately how many hours would be necessary before the markup (and corresponding rate) would drop to that of the Identified resource markup percentage. These percentages should remain fixed throughout the entire term of the agreement, including optional renewals. Technology Specialty W2 Employee Corp-toCorp Est. Hours Until Rate Drops Markup % Markup % to Identified Resource Marko % * ro oser Found Resource 33% 17.4% N/A dentifiedResource 25% 17.4% N/A * To be determined at acceptance of candidate COMPANX Box 4406. Thousand Oaks, CA 91359 Diana NAME OF A r r AND FAX Vice Al OF 9fTHORIZED AGENT DATE 'E-MAIL ADDRESS FEDERAL TD NUMBER (IF APPLICABLE) CONTRACTOR LICENSE NUMBER (IF APPLICABLE) THIS DORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. RFP 16-140 November 2016 28 25E-27 25E-28 Exhibit 2 AGREEMENT TO PROVIDE INFORMATION TECHNOLOGY PROFESSIONAL SERVICES ON AN ON -CALL BASIS THIS AGREEMENT is made and entered into this 7th day of February, 2017 by The RyTE Professionals, Inc., a California corporation. ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. On November IS, 2016, the City issued Request for Proposal No. 16-140, by which it sought consultants to famish information technology ("IT") professional services on an on -call basis. B. Consultant submitted a responsive proposal that was among seven selected by the City. Consultant represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 16-140 and attached herein as Exhibit A. C. In undertaking the perfonnance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the teens and conditions hereinafter set forth, the parties agree as follows; 1. SCOPE OF SERVICES On an as -needed basis, and at the sole discretion of City, Consultant shall furnish IT professional consulting services as described in Exhibit A to this Agreement. Consultant's proposal is incorporated by reference as though fully set forth herein. When the need for a temporary technology service arises, the City may contact any or all of the Consultants selected for an agreement under RFP 16-140 through the Order Process outlined in Section 2 below. 2. ORDER PROCESS When the need for a temporary technology service arises, the City may contact any or all of the Consultants awarded an agreement pursuant to RFP No. 16-140. City will provide the assignment details and necessary qualifications to the Consultant and a point -of -contact for the assignment. a. The City's point -of -contact is available to answer any questions Consultant(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. b. The Consultant(s) will conduct a search (if necessary), match and qualify process skills (including technology assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. C. The Consultant(s) will provide the City's point -of -contact with resumes of qualified potential candidates. d. The Consultant(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. e. From the candidates offered by the Consultant(s), the City may elect a telephone or in - person interview with one or more of the potential candidate(s). The City's point -of -contact will get in touch with the Consultant(s) to work out arrangements. 25t-29 f. The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. g. When the City has identified the candidate that it wished to engage and has notified the Consultant, the Consultant will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terns and conditions of the terms of engagement with the City. h. One the Consultant has completed the checks and confirmations, the Consultant will notify the City and final details will be worked out. is The City Agreement manager will send a confirming electronic email message to the Consultant as final confirmation of the engagement. j. After a candidate has been accepted but prior to the beginning the engagement, the Consultant will infbrn the candidate on pertinent Consultant business procedure (e.g, time reporting, requesting time off, personnel benefits, etc.) k. After an engagement starts, the Consultant will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 3. COMPENSATION a. Consultant is one of seven Consultants selected to provide IT professional services on an as -needed basis. Consultants have been selected pursuant to a competitive RFP process (RFP No. 16-140). The total funds for all IT professional services provided by all seven Consultants is a collective amount not to exceed three million dollars ($3,000,000) per year for atotal collective amount not to exceed twelve million dollars ($12,000,000) if all of the extensions are utilized. Consultant understands and acknowledges the following: (1) City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. It is possible that City may not utilize Consultant's services at all; and (2) Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in the order process but not to exceed the parameters outlined in Consultant's Certification and Proposal Item Pricing' attached hereto as Exhibit B. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on the date stated above and continue through, February 6, 2018, unless terminated earlier in accordance with Section 17, below. The tern of this Agreement may be extended for three (3) one (1) year periods upon a writing executed by the City Manager and the City Attorney. If the Agreement is extended, all terms and conditions, including pricing shall remain the same and apply during the extended terms, `-Exhibit C of Consultant's proposal in response to RFP No. t 6-140. 259-30 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire tern of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. G. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible meditun of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Workers' Compensation Insurance. In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for 251=--31 workers' compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iv) Consultant shall supply City with a fully executed additional insured endorsement. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 8. HOLD HARMLESS/INDEMNIFICATION To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless the City, its officers, agents, employees; consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligence or willful misconduct of the Consultant or its, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Consultant's indemnification obligations in this section shall survive expiration of this Agreement. Notwithstanding the 259-32 foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willfid misconduct of the Consultant 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify, and hold harmless City, its officers, agents, representatives, and employees against any and all liability or losses, including costs and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright, alleged or contained in the work product or documents provided or used by Consultant under this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. H. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally; visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with the performance of services specified under this Agreement. 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or 25L-33 certified mail, postage prepaid; or sent by fax or other telegraphic communication in the manner provided in this Section, to the fallowing persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714- 647-6956 With courtesy copies to: Chief Technology Innovations Officer Information Technology Department City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 F.V11 City Attorney City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, CA 92702 Fax (714) 647-6956_ To Consultant: The RyTE Professionals, Inc. 4699 Montefino Drive Cypress, CA 90630 Fax (714) 821-0009 A party may change its address by giving notice in writing to the other patty. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter therein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The patties agree that any terms or 25E�- 34 conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the teens and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 16. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of tennination, subject to the following conditions: a. As a condition of such payment, City may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 18. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS Contractor shall perform all requirements under this contract in strict observance of and in compliance with all applicable laws, regulations, ordinances, codes, and any other legislative or statutory requirements. 19, NONDISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recntitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity 25r:-35 employer and shall comply with all applicable federal, state and local laws and regulations. 20. BACKGROUND INVESTIGATIONS Unless exempted .by the City, Consultant will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department ("SAPD") will be required to pass an SAPD background investigation prior to begirming work with SAPD. Full name, address, phone number, birth date, Social Security number and driver's license number must be furnished to the City upon request. An application for SAPD background must be completed by each prospective contract service person who will be providing on -site services to SAPD. 21. OVERTIME AND HOLIDAYS The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked under this Agreement. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. 22. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance; and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that maybe brought or arise out of, in connection with or by reason of this Agreement. 23. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits; approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for tennination of this Agreement. 24. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the tenns of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 259-36 b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: _� A , iAo4 n' Laura A. Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: Jack Ciulla Chief Technology Innovations Officer Information Technology Department CITY OF SANTA ANA Gerardo Monet Acting City Manager CONSULTANT: Wende Morishige President The RyTE Professionals, Inc. 25t-37 EXHIBITA 25E-38 EXHIBIT A - SCOPE OF SERVICES CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES DESCRIPTION AND SCOPE OF WORK The City of Santa Ana is soliciting proposals from qualified Proposers who can provide technology contract service personnel and consulting services on an as needed basis for a one- year period, with possible extensions of three (3) additional one-year periods. This term is subject to final approval by the Santa Ana City Council. Services under any resulting agreement will be for the Information Technology Department (ITD). ITD will administer agreement(s) resulting from this RFP. It is anticipated that the services provided through these agreements would be used in five (5) distinct manners: • Provide staff for temporary situations that do not justify the addition of regular City staff. (junior- and senior -level) • Provide temporary contract service personnel with unique technology skills to act as a technical resource to project teams for projects that do not justify the addition of regular staff. • Provide additional resources for situations that exceed the capacity of existing City staff. • Provide project -based consulting and Implementation support (fixed or hourly cost). • Provide managed services based on service. (i.e., server support per server, desktop support per PC, etc.) All five (5) situations require highly qualified, technology contract service personnel who perform exceptionally well in their specialties. Technology contract service personnel and consultants will work individually as technical resources or as members of project teams, and will be under the overall general direction of City technology management. In certain instances, sub -projects may be contracted out. 1. OVERVIEW OF EXISTING SYSTEMS a. Infrastructure • About 40 physical Wintei-based servers and 250 + VMware virtualized servers supporting enterprise applications/services, local area networks and various department -specific applications • Multiple HP storage systems including Left Hand and 3PAR. SAN nodes and clusters utilize iSCSI and Fiber Channel interfaces. RFP 16-140 November 2016 11 25E-39 • Gigabit Ethernet fiber links through City Hall and connected annex • Multiple network segments supporting more than 24 City operating locations interconnected via a wide area network • Approximately 250 Aruba wireless access points throughout City Hall and most remote City facilities. Wireless network access is available for City staff and guest access. • Switched Ethernet backbone in City Hall connecting City Hall LANs and computer operating in the Central Computer Center • Mobile Device Management system utilized to manage and secure 334 personal and City issued smartphones and tablets • The City's telecommunications network serves 22 operating locations through an AT&T network of local, T-1, Fiber Optic and OPX lines with approximately3,352 equipped voice ports, 40 voicemail ports, 2,104 telephone extensions and 1,773 telephone instruments. • The existing telecommunications infrastructure is comprised of 14 NEC telephone switches (NEAR 2400 IPX, NEAX 2000 IPX, NEAX 2000 IPS), key systems (NEAX INFOSET 408) and 32 VoIP telephones plus a CENTIGRAM 640 voice processing system with 40 ports and 120 hours of storage. • The City has adopted the ANSI/EIA/TIA and NEC standards, as well as BJCSI design and installation methods for all materials, installation, testing, configuration and documentation of the City telecommunications infrastructure. These guidelines are based upon widely used industry standards such as, but not limited to, EIA/TIA 568, 569, 570, 606A, 607, including all TSB's, and the NEC codes related to Telecommunications Infrastructures. b. Applications • Infor Lawson financial application • Highline HR/Payroll application • Laserfiche document management • ESRI GIS • Cherwell USM • IVOS Workers' Compensation • Tritech CAD and RMS • iNovah cashiering • Systems and Software's enQuesta CIS • Drupal CMS • Various .NET -based homegrown applications • Various Microsoft Access -based applications c. Desktop/Mobile. • Approximately 2,000 Dell desktop and laptop computers • Approximately 300 Apple iPhone, Apple iPad and Samsung Galaxy devices RFP 16-140 November2016 IPA 25E-40 2. SERVICES BEING SOUGHT The City seeks Proposers to provide contract service personnel with specific technology skills to perform assignments of varying length, Multiple pre -approved Proposers may be contacted to propose resources and a quote for a requested assignment/project. In response to requests from the Information Technology Department, the Proposer(s) shall: a. Research their roster of personnel and/or recruit for potential candidates. b. Screen available candidates in order to match technology skills and work experience with requirements of the City job assignments. c. Confirm candidate qualifications including technology skills, experience, work habits, interpersonal skills, quality of work performed, reference checks, etc. d. Confirm candidate availability for the City assignment. e. Provide the information Services Division with resumes of screened qualified candidates (identifying skills, work experience and education) and their charge (i,e. bill) rates. f. Upon the City's conditional acceptance of a candidate, conduct background checks (See Section 6.1 for details). g. After a candidate has been accepted but prior to beginning the engagerent, inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g. time reporting, requesting time off, personnel benefits, etc.) h. After an engagement starts, monitor their personnels' performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. There is no guarantee as to the number of times a Proposer will be used or the dollar amount that will be expended with them. 3. PROPOSER RESPONSIBILITIES a. Proposer(s) will be responsible for all payments and benefits for contract service personnel placed on assignments with the City, including payroll, taxes, other withholding, vacation, other benefits, etc. (See Section 6,13 for details). b. Proposer(s) will be responsible for the conduct of any temporary contract service personnel placed with the City. If, at the sole discretion of the City, a temporary contract service person is determined to be unsatisfactory for any reason, the Proposer will withdraw the individual upon notification by the City. The City will not be charged for the period of unsatisfactory service. c. Proposer(s) will provide training and education programs for their personnel on assignment with the City. This is intended to ensure that these personnel remain technically knowledgeable to perform their assignments for the City, Proposer(s) will provide programs that will promote the retention of their personnel on assignment with the City. nFP 16,140 November 2016 13 25E-41 4. DESCRIPTION OF TECHNOLOGY POSITIONS TO BE PROVIDED The skills and services will be needed in the technology categories of: • Application & Development Services • Telecommunications Services • User Support Services • Business / Application / Project Consulting Services • Technology Operations & Support Services Specific abilities required will vary depending on the operations and projects involved. Detailed identification of knowledge, skills, abilities, experience and education will be provided for each assignment with the City. Tabled, below, shows a sample of technology -related positions by category for which the City may seek Proposer(s) to provide contract service personnel. This list is not exhaustive or fixed. As the technology needs of the City change, the technology specialties sought will also change. This list does demonstrate the range and depth of technology fields and positions potentially sought by the City. Contract service personnel and consultants may be expected to perform other related duties not specifically detailed herein or in the City's pre -engagement description of the assignment (at the quoted rate) but that are generally within the scope of the job classification requirements for knowledge skills and abilities specified. The City does not require that each Proposer be able to provide candidates for all the range and depth of technology job positions covered by this RFP. Each Proposer will be asked in its proposal to identify the Technology category or categories for which it can provide qualified candidates or consulting services to the City. RFP 16-140 November 2016 14 25E-42 Table 1 -Potential Technology Specialties by Category (Caution: List is not comprehensive) Applications & Development Services • Systems Architect and Engineer • Systems Analyst • Programmer/Developer (MS Windows Visual Studio and SQL for client/server environment) • Web Devoloper (.NET/PHP) • Database Administrator (MS SQL) • Document Imaging Application Specialist • Business intelligence Specialist • Mobile App developer (IOS & android OS) Telecommunications Services • Telephone System Administrator • Telephone System Engineer • Voice System Engineer (Centigram) • Cabling Installer User Support Services • Help Desk. Specialist • IT Support Specialist (Desktop) • Mobility Technology Coordinator • IT Support Intern RFP 16-140 November 2016 Business / Application / Project Consulting Services • IT Business Analyst (with municipal government experience) • Project Lead (for deployment of purchased software application) • Project Lead (for software development project) • Technology Consultant for specialized application (See Section A above, e.g., Lawson, Highl-re, etc.) • System Evaluation & Selection Consultant Technology Operations & Support Services • Infrastructure Architecture / Planning Engineer • Network Engineer (Cisco) • Network Security Engineer (Cisco) • Network Specialist— LAN Administrator (Cisco) • MS Exchange Engineer • Anti -Virus & Anti-SPAM Services Administrator • Data Center Engineer (HP servers, Win OS, VMware, HP SAN) • Wireless infrastructure Engineer (Aruba) 15 25E-43 5. ORDER PROCESS When a need for temporary technology contract services or consulting arises, the City may contact any or all of the Proposer(s) (those Proposers selected and awarded an agreement) a. The City will provide the assignment details and necessary qualifications to the Proposer(s) and a point -of -contact for the assignment.. b. The City's point -of -contact is available to answer any questions Proposer(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. c, The Proposer(s) will conduct a search (if necessary), match and qualify process skills (including technical assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. d. The Proposer(s) will provide the City's point -of -contact with resumes of qualified potential candidates. e. The Proposer(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. f. From the candidates; offered by Proposer(s), the City may elect to conduct a telephone or in -person interview with one or more of the potential candidate(s). The City's point -of -contact will get in touch with the Proposer(s) to work out the arrangements. g. The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. h. When the City has identified a candidate that it wishes to engage and has notified the Proposer, the Proposer will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terms and conditions of an engagement with the City. i. Once the Proposer has completed the checks and confirmations, the Proposer will notify the City and final details will be worked out. j. The City agreement manager will send a confirming electronic mail message to the Proposer as final confirmation of the engagement. k. After a candidate has been accepted but prior to beginning the engagement, the Proposer will inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g. time reporting, requesting time off, personnel benefits, etc.) I. After an engagement starts, the Proposer will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 6. TERMS & CONDITIONS The following terms and conditions will be included in any subsequent agreement with the City. These terms and conditions are being repeated in this RFP due to their special impact in defining a contractual relationship between prospective Proposer(s) and the City. 6.1 Background Investigations Unless exempted by the City; Proposer(s) will conduct a background check an each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department (SAPD) will be required to pass a SAPD background investigation prior to beginning work with SAPD. Full name, address, phone number, birth date, Social Security number and driver's license number RFP 16.140 November 2016 V 25E-44 must be furnished to the City upon request. An application for SAPID background must be completed by each prospective contract service person who will be providing on -site services to SAPID, 6.2 Certificate of Insurance Proof of insurance is NOT required to be submitted with the proposal, but it will be required prior to the City's award of any Agreement. Proposers should carefully consider the City insurance requirements and the related documentation included in the Sample Agreement (See Appendix 6) and in the Sample Insurance Forms (See Appendix O). Proposals should be based on full and complete compliance with all parts and directions relating to these insurance requirements. 6.3 City Responsibilities There is no guarantee as to the number of times an agency will be used or the dollar amount that will be expended with them. 6.4 Cancellation The agreement may be cancelled by either party with 30 days' written notice. 6.5 Contract Service Personnel & Consultants This Agreement shall not render the Contract Service Personnel and Consultants an employee, partner, agent of or joint venturer with the City for any purpose. Any Contract Service Personnel and Consultant is and will remain an independent contractor in (his or her) relationship to the City. The City shall not be responsible for withholding taxes with respect to the Service Personnel's and Consultant's compensation hereunder. The Contract Service Personnel and Consultant shall have no claim against the City hereunder or otherwise for vacation pay, sick leave, retirement benefits, Social Security, worker's compensation, health or disability benefits, unemployment insurance benefits or employee benefits of any kind. 6.6 Documents to Be Construed Together The Request for Proposals, the Proposal and all documents referred to in the complete specifications and the Agreement to be entered into between the Proposer and the City, and all modifications of said documents, shall be construed together as one document. 6.7 Errors and Omissions Proposer(s) shall not be allowed to take advantage of any errors in or omissions in the Request for Proposal. Full instructions will be given if such error or omission is discovered and called in a timely manner to the attention of the City. 6.6 Evidence of Financial Ability At the option of the City, Proposers may be required to furnish evidence of sufficient financial ability and responsibility to enable them to fulfill this Agreement. 6.9 Firm Commitment of Availability of Service Once a proposal is opened, a Proposer is otherwise expected to maintain an availability of service as set forth in its proposal for the stated prices for the full Agreement term after date of opening proposals. nFP 16-140 November 2016 17 25E-45 6.10 Intellectual Property Rights All work performed by temporary contract service personnel/consultants for the City becomes the sole property of the City of Santa Ana, and the City retains all rights to that work. 6.11 Invoices Proposer(s) will submit invoices upon completion of work performed. As a basis for payment of invoices, temporary staff/consultants must provide Proposer(s) with a timesheet for each billing period, signed by their City of Santa Ana supervisor. This timesheet must show the project assignment/s during the billing period and hours worked for each project. All invoices submitted for payment must show the breakdown of hours actually worked for each individual according to their timesheets. The City will pay invoices within 30 days after approval by the City Agreement administrator. No purchase orders will be issued. 6.12 Labor and Wage Requirements The Proposer shall be fully responsible for ensuring: a) The payment of all salaries, wages, bonuses, Social Security, Workers' Compensation taxes, Federal and State Unemployment Insurance, and any and all taxes relating to the personnel furnished under this agreement. b) Withholding State and Federal Income taxes c) F:LC,A.taxes d) Providing Workers' Compensation for its personnel e) Compliance with all other laws relating to employees and contract personnel, such as wage and hour laws, safety and health requirements, and collective bargaining laws. 6.13 Orders The City does not guarantee any specific number of hours or assignments will be made during the life of this agreement. City requirements for temporary services not specified in this proposal will be contracted on the open market in the customary manner. Proposer(s) will be required to provide some mutually acceptable means for the City to contact them during normal business hours of 8:00 a.m. to 5 p.m. Pacific Time, Monday through Friday. 6.14 Overtime and Holidays The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. RFP 16-140 November 2016 18 25E-46 The following are City Holidays: • New Year's Day • Martin Luther King Jr. Day • Presidents' Day • Memorial Day • Independence Day • Labor Day • Veterans Day • Thanksgiving Day (2 days) • Christmas Eve • Christmas Day 7. SUPPLEMENTAL QUESTIONS Proposer must include: a. Short summary description of the organization b. Short summary description of the ownership c. Description of the major service offered by the Proposer's firm d. List of acceptable invoicing frequencies. (i.e., weekly, bi-weekly, semi-monthly, monthly) e. The number of years that the Proposer has been in the business of providing temporary technology contract service personnel and/or consulting services of the kind sought by the City. (if company name or ownership has changed of the period cited, please note and explain.) f. Description of the overall qualifications of the Proposer, including its experience and its ability to provide temporary technology contract service personnel and/or consulting services g. Description of any unique qualifications and experience that distinguish the Proposer's ability to provide temporary technology staffing and/or consulting h. Confirmation of the Proposers willingness and capability to agree to and to follow the terms and processes outlined in this RFP and any resulting agreement including all administrative and billing procedures of the City L Description of any other information the Proposer feels is relevant in helping the City gauge the Proposer's business stability j. No more than three (3) samples of the style of resumes that your firm would provide to clients. (This will allow the City to assess the readability of the formats and the usefulness of contents of the resumes the City could expect from the Proposer, These resumes will not be used to rate potential candidates.) k. List of the types of technology specialties for which the Proposer provides temporary placements or consulting services. (For example, if you only provide consulting services for a specific product or skill -set, please specify.) I. List of any unique qualifications and/or experience that distinguish the Proposer's ability to provide temporary Contract Service Personnel or consulting services in the various technology RFP 16-140 November 2016 19 25E-47 fields/specialties. For example, a Proposer may have the capability to provide emergency placements with 24 hours, to conduct technical qualifying testing, to use highly -qualified technology screeners to evaluate and rate candidates'skills, to employ special techniques to track a placed contractor's performance, to provide on -call for specialized technology needs, etc. These are examples only and not mandatory services or qualifications. m. Description of Proposer's methods used to identify potential candidates n. Description of Proposer's methods used to screen candidates and to match their qualifications against the requirements of a City job assignment o. Description of Proposer's methods used to assess and confirm candidate's technology skills/knowledge, experience, work habits, interpersonal skills, etc. p. Description of Proposer's methods used to establish candidate availability with respect to the project schedule of the City assignment q. Description of the quality (as opposed to quantity) of the candidates within a job assignment (e.g. City seeks senior network engineer) that the Proposer can provide r. Explanation of any training opportunities made available by the Proposer for technology personnel engaged with the City s. Explanation of any effort the Proposer takes to ensure that the technology knowledge and skills of its staff engaged with the City are maintained and refreshed during long term engagements with the City t. Description of any programs and benefits provided by the Proposer to its Contract Service Personnel and Consultants engaged with the City that ensure their retention for the period required by the City u. Confirmation that there are no penalties to the City, Contract Service Personnel or consultants if the individual was to become a City employee. If there is a minimum amount of contract time that would need to occur, specify that amount of time (e.g, After six months of placement, Contract Service Personnel may be hired without any penalties, etc.). RFP 16-140 November 2016 20 25E-48 EXHIBIT 25E-49 4699 Montefino Drive Cypress,. CA 90630 Main tine: 714.821,6699 Pax: 714,821.0009 A _ rytepros.eom EXHIBIT C PROPOSERS CERTIFICATION and PROPOSAL ITEM PRICING CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS. NEEDED PROFESSIONAL SERVICES Certification - I certify that I have read, understand and agree to the terms and conditions of this Request for Proposals. I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests. I understand and agree that I am responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal. THE RyTE Professionals has read, understand and agrees to the terms and conditions of this Request for Proposal, and agrees to the terms above. 1. APPLICATION/TECHNOLOGY-SPECIFIC PRICING Complete this table if your organization consists of permanent employees who specialize in a specific application or technology and have fixed standard pricing. For example, you may provide a Lawson Technical resource or a HighLine functional resource. These should be actual committed rates that would good for the entire term of the agreement, including the optional renewals. Onsite rates should be fully inclusive of all travel costs. Add as many rows as necessary. THE RyTE Professionals does not hire permanent employees. 2. GENERAL STAFFING PRICING Complete these tables if your organization hires temporary employees or subcontractors to fill assignments (staffing firm model) for each of the Technology Specialties listed in Table 1, Exhibit A, Section 4. For example, you may provide System Analyst or a Network Engineer. Estimated Rates These rates are just estimates based on current engagements that you have. Actual rates will be quoted at the time of order placement per the process described in Exhibit A, Section 5, Add as many rows as necessary. See table below for Technology Specialty. These rates reflect current consultants on assignment in these specific skillsets, THE RyTE Professionals does not have a "Technology Specialty', such as SAP or LAWSON, but rather specializes in finding consultants with specific skill sets as needed by our clients. If the City of Santa Ana needs a Lawson Developer, for example, we would engage a search on our current database, as well as network in the appropriate areas to find these skilisets. 21 25E-50 RYYE Pros �I ib� , 1W 4699 Montefino Drive Cypress CA 90630 Main Tine 714.821.6699 Fax 714.821,0009 rytepros,com Technology Specialty Estimated Hourly Rate Estimated Hourly Rate Minimum Hours Offsite, no travel Onsite. Inc., travel Applications & Development Services Systems Architect and Engineer $85.00 - $110.00 $85.00 - $110,00 40 hours Systems Analyst $70.00 - $85.00 $70000 - $85.00 40 hours Programmer/Developer (MS Windows Visual Studio and SQL for client/server environment) $60.00 - $85.00 $60.00 - $85,00 40 hours Web Developer .NETIPHP $65.00 - $85.00 $65.00 - $85.00 40 hours Database Administrator MS SQL $80.00 - $100.00 $80.00 - $100.00 40 hours Document Imaging Application Specialist $65.00 - $85.00 $65.00-$85.00 40 hours Business Intelligence Specialist $80.00 - $95,00 $85.00 - $95.00 40 hours Mobile Apps developer (IOS and Android OS $70.00 - $95.00 $70.00 - $95.00 40 hours Telecommunications Services Telephone Systems Administrator N/A N/A 40 hours Telephone System Engineer N/A N/A 40 hours Voice System En ineer Centi ram N/A N/A 40 hours Cabling Installer N/A N/A User Support Services Help Desk Specialist $25,00 - $45.00 $25.00 - $45.00 40 hours IT Support Specialist Desktop $25.00 - $45.00 $25.00 - $45. 00 40 hours .-Mobility Technology Coordinator $45.00 - $65,00 $45.00 - $65.00 40 hours ITSupport Intern $20.00 - $30.00 $20.00 - $30.00 40 hours Business/ApplicationlPro'ect Consulting Services IT Business Analyst (with municipal government experience $70.00 - $85.00 $70.00 - $85.00 40 hours Project Lead (for deployment of purchased software application) $80.00 - $90.00 $80.00 - $90.00 40 hours Technology Consultant for specialized application $80.00 - $110,00 $80,00 - $110.00 40 hours System Evaluation & Selection Consultant $80.00 - $95.00 $80.00 - $95,00 40 hours Business Analyst $65.00 - $85.00 $65.00 - $85.00 40 hours Project Coordinator $%00 - $75.00 $%00 - $75,00 40 hours Program Manager $85.00 - $110.00 $85.00 - $110.00 40 hours Project Mana er $85.00 - $110.00 $II5.00 - $110.00 40 hours 22 25E-51 �•J`� BYTE Pros '7bp fly4E f"�'nKivsgWW�ri.*fi*'' 4699 Montefino Drive Cypress, CA 90630 Main line: 714.821.6699 Fax 714.821.0009 rytepros.com Technology Operations & Support Services Infrastructure Architecture/PlanningEn ineer $85,00 - $110.00 $85.00-$110.00 Network En ineer Cisco $70.00 - $95.00 $75.00 - $95.00 Network securlt�Engi eer (Cisco) $65.00 - $80.00 $65.00 - $80.00 MS Exchange Engineer _ $65.00 - $80.00 $65.00 - $80.00 Anti Virus & Anti SPAM Services Administrator $60.00 - $75.00 $60.00 - $75.00 Data Center Engineer (HP servers, Win OS, Vmware, HP Sant $65.00 - $85.00 $75.00 - $95.00 :940hours Wireless Infrastructure En ineer Aruba $70.00 - $95.00 $75,00 - $95,00 The above rates represent our consultants' range of rates currently on assignment. We currently have over 100 consultants working for THE RyTE Professionals, These range from junior to senior levels. We will make every effort to meet the City of Santa Ana's rates and requests and hopes to be favorably reviewed. If there is N/A in the box, we currently do not have those skillsets working for us. 23 25E-52 FiyTE Pros The 1�y Tg Markup Percentages 4699 Montefino Drive Cypress, CA 90630 Main line: 714.821.6699 Fax: 714.821.0009 rytepros,com This reflects the markup percentages used by your firm to when staffing Contract Service Personnel with the City. The first row reflects the markup if the Proposer(s) are asked to find a resource. Since this scenario requires additional marketing costs, it is expected the markup will be higher. The second row should reflect the markup if a resource has already been identified and no marketing is required. Furthermore, identify the different markup percentages between a W2 employee and Corp -to -Corp resource. Finally, estimate approximately how many hours would be necessary before the markup (and corresponding rate) would drop to that of the Identified resource markup percentage. These percentages should remain fixed throughout the entire term of the agreement, including optional renewals. Technology Specialty W2 Employee Corp -to -Corp Est. Hours Until Rate " Markup °/u Markup % Drops to Identified Resource Markup % Proposer Found Resource 35% 20% N/A Identified Resource 30%* 15%* N/A I o oe aetermmed at acceptance of candidate * Please note: Due to California tax laws and mandates in place, markup must include adjustments for this. Depending on the rate, W SWS2, Inc./DBATHE RyTE Professionals our payroll or Identified Resource this markup could fluctuate to a lesser 714.821.6699/714, 821.0009 LEGAL NAME OF COMPANY PHONE AND FAX NUMBERS 4699 MONTEFINO DRIVE, CYPRESS, CA 90630 BUSINESS ADDRESS WENDE MORISHIGE PRESIDENT PRINTED NAME OF AUTHORIZED AGENT TITLE wende(cr)rvtepros com SIGNATURE OF AUTHORIZED AGENT DATE E-MAIL ADDRESS FEDERAL ID NUMBER (IF APPLICABLE) CONTRACTOR LICENSE NUMBER (IF APPLICABLE) THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. 24 25E-53 25E-54 Exhibit 3 AGREEMENT TO PROVIDE INFORMATION TECHNOLOGY PROFESSIONAL SERVICES ON AN ON -CALL BASIS THIS AGREEMENT is made and entered into this 7th day of February, 2017 by Scientia Consulting Group, Inc., a California corporation. ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized acid existing under the Constitution and laws of the State of California ("City") RECITALS A. On November 15, 2016, the City issued Request for Proposal No. 16-140, by which it sought consultants to furnish information technology ("IT") professional services on an on -call basis. B. Consultant submitted a responsive proposal that was among seven selected by the City. Consultant represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 16-140 and attached herein as Exhibit A. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1, SCOPE OF SERVICES On an as -needed basis, and at the sole discretion of City, Consultant shall furnish IT professional consulting services as described in Exhibit A to this Agreement. Consultant's proposal is incorporated by reference as though frilly set forth herein. When the need fora temporary technology service arises, the City may contact any or all of the Consultants selected for an agreement under RFP 16-140 through the Order Process outlined in Section 2 below. 2. ORDER PROCESS When the need for a temporary technology service arises, the City may contact any or all of the Consultants awarded an agreement pursuant to RFP No. 16-140, City will provide the assignment details and necessary qualifications to the Consultant and a point -of -contact for the assignment. a. The City's point -of -contact is available to answer any questions Consultant(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. b. The Consultant(s) will conduct a search (if necessary), match and qualify process skills (including technology assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. C. The Consultant(s) will provide the City's point -of -contact with resumes of qualified potential candidates. d. The Consultant(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. e. From the candidates offered by the Consultant(s), the City may elect a telephone or in - person interview with one or more of the potential candidate(s). The City's point -of -contact will get in 1 25E-55 touch with the Consultant(s) to work out arrangements. f. The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. g. When the City has identified the candidate that it wished to engage and has notified the Consultant, the Consultant will conduct background checks, and confirm candidate availabihty, interest in the engagement and acceptance of the terms and conditions of the terins of engagement with the City. h. One the Consultant has completed the checks and confirmations, the Consultant will notify the City and final details will be worked out. i. The City Agreement manager will send a confirming electronic email message to the Consultant as final confirmation of the engagement. j. After a candidate has been accepted but prior to the beginning the engagement, the Consultant will inform the candidate on pertinent Consultant business procedure (e.g. time reporting, requesting time off„ personnel benefits, etc.) k. After an engagement starts, the Consultant will monitor their personnel's peid'ornance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 3. COMPENSATION a. Consultant is one of seven Consultants selected to provide IT professional services on an as -needed basis. Consultants have been selected pursuant to a competitive RFP process (RFP No. 16-140). The total funds for all IT professional services provided by all seven Consultants is a collective amount not to exceed three million dollars ($3,000,000) per year for atotal collective amount not to exceed twelve million dollars ($12,000,000) if all of the extensions are utilized. Consultant understands and acknowledges the following; (1) City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. It is possible that City may not utilize Consultant's services at all; and (2) Consultant shalt be paid only for actual services performed under this Agreement at the rates and charges identified in the order process but not to exceed the parameters outlined in Consultant's Certification and Proposal Itern Pricing' attached hereto as Exhibit B. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards ofperfonnance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on the date stated above and continue through, February 6, 2018, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for three (3) one (1) year periods upon a writing executed by the City Manager and the City Attorney. If the Agreement is extended, all terms and conditions, including pricing shall remain the same and apply during the extended terns. ' Exhibit C of Consultant's proposal in response to RFP No, 16-140. 2 25E-56 S. INDEPENDENT CONTRACTOR Consultant shall, during the entire tenn of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $ t,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. e. Workers' Compensation Insurance. In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for 25L-57 workers' compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iv) Consultant shall supply City with a fully executed additional insured endorsement. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is In force and paid for, the City shall have the right, at the City's election, to terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification ofterinination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 8. HOLD HARMLESS/INDEMNIFICATION To the fullest extent permitted bylaw, Contractor shall indemnify, defend, and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability; (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligence or willful misconduct of the Consultant or its, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury; damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding.. Consultant's 4 25E-58 indemnification obligations in this section shall survive expiration of this Agreement. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782, 8, to claims that arise out of, pertainto, or relate to the negligence, recklessness, or willful misconduct of the Consultant INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify, and hold harmless City, its officers, agents, representatives, and employees against any and all liability or losses, including costs and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright, alleged or contained in the work product or documents provided or used by Consultant under this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 11, CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no Fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of Consultant an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12, CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with the performance of services specified under this Agreement. 5 25E-59 13. NOTIC) Any notice; tender, demand, delivery, or other cormnnnication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714- 647-6956 With courtesy copies to. Chief Technology Innovations Officer Information Technology Department City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 And City Attorney City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, CA 92702 Fax (714) 647-6956 To Consultant: Scientia Consulting Group, Inc. 1591 South Sinclair Street; Suite B Anaheim, CA 92806 Fax A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States snail, duty registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 25E-60 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter therein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the Citys prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 16. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, City may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 18. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS Contractor shall perform all requirements under this contract in strict observance of and in compliance with all applicable laws, regulations, ordinances, codes, and any other legislative or statutory requirements. 7 25E-61 19. NONDISCRIMINATION Consultant shall not. discriminate because of race, color, creed, religion, sex; marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection; training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 20. BACKGILOUND INVESTIGATIONS Unless exempted by the City, Consultant will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department ("SAPD") will be required to pass an SAPD background investigation prior to beginning work with SAPD. Full name, address, phone number, birth date, Social Security number and driver's license number must be furnished to the City upon request. An application for SAPD background must be completed by each prospective contract service person who will be providing on -site services to SAPD. 21. OVERTIME AND HOLIDAYS The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked under this Agreement. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. 22. JU'RISDICTION- VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall bethe venue for any action or proceeding that maybe brought or arise out of, in connection with or by reason of this Agreement. 23. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Anna and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 8 25E-62 24. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. 15A Marla D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: 4-vLVY11 -A Laura A. Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: Jack Ciulla Chief Technology Innovations Officer Information Technology Department CITY OF SANTA ANA Gerardo Mouet Acting City Manager CONSULTANT: Phil Danie Chief Executive Officer Scientia Consulting Group, Inc. 9 25E-63 EXHIBIT A 25E-64 EXHIBIT A - SCOPE OF SERVICES CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES DESCRIPTION AND SCOPE OF WORK The City of Santa Ana is soliciting proposals from qualified Proposers who can provide technology contract service personnel and consulting services on an as needed basis for a one- year period, with possible extensions of three (3) additional one-year periods. This term is subject to final approval by the Santa Ana City Council, Services under any resulting agreement will be for the Information Technology Department (ITD). ITD will administeragreement(s) resulting from this RFP. It is anticipated that the services provided through these agreements would be used in five (5) distinct manners: • Provide staff for temporary situations that do not justify the addition of regular City staff. (junior- and senior -level) • Provide temporary contract service personnel with unique technology skills to act as a technical resource to project teams for projects that do not justify the addition of regular staff. • Provide additional resources for situations that exceed the capacity of existing City staff. • Provide project -based consulting and implementation support (fixed or hourly cost). • Provide managed services based on service. (i.e., server support per server, desktop support per PC, etc.) All five (5) situations require highly qualified, technology contract service personnel who perform exceptionally well in their specialties, Technologycontract service personnel and consultants will work individually as technical resources or as members of project teams, and will be under the overall general direction of City technology management. In certain instances, sub -projects may be contracted out. 1. OVERVIEW OF EXISTING SYSTEMS a. Infrastructure About 40 physical Wintel-based servers and 250 + VMware virtualized servers supporting enterprise applications/services, local area networks and various department -specific applications Multiple HP storage systems including left Hand and 3PAR. SAN nodes and clusters utilize SCSI and Fiber Channel interfaces. Pt FP 16-140 November 2016 m 25E-65 • Gigabit Ethernet fiber links through City Hall and connected annex • Multiple network segments supporting more than 24 City operating locations interconnected via a wide area network • Approximately 250 Aruba wireless access points throughout City Hall and most remote City facilities, Wireless network access is available for City staff and guest access. • Switched Ethernet backbone in City Hall connecting City Hall LANs and computer operating in the Central Computer Center • Mobile Device Management system utilized to manage and secure 334 personal and City issued smadphones and tablets • The City's telecommunications network serves 22 operating locations through an AT&T network of local, T-1, Fiber Optic and OPX lines with approximately 3,352 equipped voice ports, 40 voicemall ports, 2,104 telephone extensions and 1,773 telephone instruments. • The existing telecommunications infrastructure is comprised of 14 NEC telephone switches (NEAR 2400 IPX; NEAR 2000 IPX, NEAX 2000 IPS), key systems (NEAX INFOSET 408) and 32 VoIP telephones plus a CENTIGRAM 640 voice processing system with 40 ports and 120 hours of storage. • The City has adopted the ANSI/EIA/TIA and NEC standards, as well as BICSI design and installation methods for all materials, installation, testing, configuration and documentation of the City telecommunications infrastructure. These guidelines are based upon widely used industry standards such as, but not limited to, EIA/TIA 568, 569, 570, 606A, 607, including all TSB's, and the NEC codes related to Telecommunications Infrastructures. b. Applications • Infor Lawson financial application • Hi;htme HR/Payroll application • Laserfiche document management • ESRI GIS • CherwelllTSM • IVOS Workers' Compensation • Tritech CAD and RMS • iNovah cashiering • Systems and Softwa•e's eaQuesta CIS • Drupal CYIS • Various .NET -based homegrown applications • Various Microsoft Access -based applications c. Desktop/Mobile. • Approximately 2,000 Dell desktop and laptop computers • Approximately 300 Apple iPhone, Apple iPad and Samsung Galaxy devices RFP I6-140 November 2016 12 25E-66 2. SERVICES BEING SOUGHT The City seeks Proposers to provide contract service personnel with specific technology skills to perform assignments of varying length. Multiple pre -approved Proposers may be contacted to propose resources and a quote for a requested assignment/project. In response to requests from the Information Technology Department, the Proposer(s) shall: a. Research their roster of personnel and/or recruit for potential candidates. b. Screen available candidates In order to match technology skills and work experience with requirements of the City Job assignments. c. Confirm candidate qualifications including technology skills, experience, work habits, interpersonal skills, quality of work performed, reference checks, etc. d. Confirm candidate availability for the City assignment. e. Provide the Information Services Division with resumes of screened qualified candidates (identifying skills, work experience and education) and their charge (i.e. bill) rates. f. Upon the City's conditional acceptance of a candidate, conduct background checks (See Section 6.1 for details). g. After a candidate has been accepted but prior to beginning the engagement, inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g, time reporting, requesting time off, personnel benefits, etc.) h. After an engagement starts, monitor their personnel/s' performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. There is no guarantee as to the number of times a Proposer will be used or the dollar amount that will be expended with them. 3. PROPOSER RESPONSIBILITIES a. Proposer(s) will be responsible for all payments and benefits for contract service personnel placed on assignments with the City, including payroll, taxes, other withholding, vacation, other benefits, etc. (See Section 6.13 for details). b. Proposer(s) will be responsible for the conduct of any temporary contract service personnel placed with the City. If, at the sole discretion of the City, a temporary contract service person is determined to be unsatisfactory for any reason, the Proposer will withdraw the individual upon notification by the City. The City will not be charged for the period of unsatisfactory service. c. Proposer(s) will provide training and education programs for their personnel on assignment with the City. This is intended to ensure that these personnel remain technically knowledgeable to perform their assignments for the City. Proposer(s) will provide programs that will promote the retention of their personnel on assignment with the City. RFP 16-140 November 2016 13 25E-67 4. DESCRIPTION OF TECHNOLOGY POSITIONS TO BE PROVIDED The skills and services will be needed in the technology categories of; • Application & Development Services • Telecommunications Services • User Support Services • Business / Application / Project Consulting Services • Technology Operations & Support Services Specific abilities required will vary depending on the operations and projects involved. Detailed identification of knowledge, skills, abilities, experience and education will be provided for each assignment with the City. Table 1, below; shows a sample of technology -related positions by category for which the City may seek Proposers) to provide contract service personnel. This list is not exhaustive or fixed. As the technology needs of the City change, the technology specialties sought will also change. This list does demonstrate the range and depth of technology fields and positions potentially sought by the City. Contract service personnel and consultants may be expected to perform other related duties not specifically detailed herein or in the City's pre -engagement description of the assignment (at the quoted rate) but that are generally within the scope of the job classification requirements for knowledge skills and abilities specified. The City does not require that each Proposer be able to provide candidates for all the range and depth of technology job positions covered by this RFP. Each Proposer will be asked In its proposal to identify the technology category or categories for which it can provide qualified candidates or consulting services to the City. RFP 16-140 November 2046 14 25E-68 Table 1 - Potential Technology Specialties by Category rcautl= List is not comprehensive, Applications a Development Services Systems Architect and Engineer • Systems Analyst • Programmer/Developer (MS Windows Visual Studio and SQL, for client/server environment) + Web Developer (.NET/PHP) • Database Administrator (MS SQL) • Document Imaging Application Specialist • Business Intelligence Specialist • Mobile App developer (iOS & android OS) Telecommunications Services • Telephone System Administrator • Telephone System Engineer • Voice System Engineer (Centigram) • Cabling Installer User Support Services • Help Desk Specialist • IT Support Specialist (Desktop) • Mobility Technology Coordinator • IT Support Intern nFP 16-140 November 2016 Business / Application / Project Consulting Services • IT Business Analyst (with municipal government experience) • Project Lead (for deployment of purchased software application) • Project Lead (for software development project) • Technology Consultant for specialized. application (See Section A above, e.g., Lawson, Highl.fne, etc.) • System Evaluation & Selection Consultant Technology Operations & Support Services • Infrastructure Architecture / Planning Engineer • Network Engineer (Cisco) • Network Security Engineer (Cisco) • Network Specialist— LAN Administrator (Cisco) • MS Exchange Engineer • Anti -Virus & Anti-SPAM Services Administrator • Data Center Engineer (HP servers, Win OS, VMware, HP SAN) • Wireless infrastructure Engineer (Aruba) 15 25E-69 5. ORDER PROCESS When a need for temporary technology contract services or consulting arises, the City may contact any or all of the Proposer(s) (those Proposers selected and awarded an agreement) a. The City will provide the assignment details and necessary qualifications to the Proposer(s) and a point -of -contact for the assignment. b. The City's paint -of -contact is available to answer any questions Proposer(s) may have on the assignment, the qualifications, experienceiskill level needed, desired pay rate, etc. c. The Proposer(s) will conduct a search (if necessary), match and qualify process skills (including technical assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates, d. The Proposer(s) will provide the City's point -of -contact with resumes of qualified potential candidates. e. The Proposer(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. f. From the candidates offered by Proposer(s), the City may elect to conduct a telephone or in -person interview with one or more of the potential candidate(s), The City's point -of -contact will get in touch with the Proposer(s) to work out the arrangements. g. The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. h, When the City has identified a candidate that it wishes to engage and has notified the Proposer, the Proposer will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terms and conditions of an engagement with the City. i. Once the Proposer has completed the checks and confirmations, the Proposer will notify the City and final details will be worked out. j. The City agreement manager will send a confirming electronic mail message to the Proposer as final confirmation of the engagement. k. After a candidate has been accepted but prior to beginning the engagement, the Proposer will inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g. time reporting, requesting time off, personnel benefits, etc.) I. After an engagement starts, the Proposer will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction, 6. TERMS & CONDITIONS The following terms and conditions will be included in any subsequent agreement with the City. These terms and conditions are being repeated in this RFP due to their special impact in defining a contractual relationship between prospective Proposer(s) and the City. 6.1 Background Investigations Unless exempted by the City, Proposer(s) will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department (SAPD) will be required to pass a SAPID background investigation prior to beginning work with SAPID. Full name, address, phone number, birth date, Social Security number and driver's license number RFP 16-1do November 2016 16 25E-70 must be furnished to the City upon request. An application for SAPID background must be completed by each prospective contract service person who will be providing on•site services to SAPD, 6.2 Certificate of Insurance Proof of insurance is NOT required to be submitted with the proposal, but it will be required prior to the City's award of any Agreement. Proposers should carefully consider the City insurance requirements and the related documentation included in the Sample Agreement (See Appendix B) and in the Sample Insurance Forms (See Appendix G). Proposals should be based on full and complete compliance with all parts and directions relating to these insurance requirements. 6.3 City Responsibilities There is no guarantee as to the number of times an agency will be used or the dollar amount that will be expended with them. 6.4 Cancellation The agreement may be cancelled by either party with 30 days' written notice. 6,5 Contract Service Personnel & Consultants This Agreement shall not render the Contract Service Personnel and Consultants an employee, partner, agent of or joint venturer with the City for any purpose. Any Contract Service Personnel and Consultant Is and will remain an independent contractor in (his or her) relationship to the City. The City shall not be responsible for withholding taxes with respect to the Service Personnel's and Consultant's compensation hereunder. The Contract Service Personnel and Consultant shall have no claim against the City hereunder or otherwise for vacation pay, sick leave, retirement benefits, Social Security, worker's compensation, health or disability benefits, unemployment insurance benefits or employee benefits of any kind. 6.6 Documents to Be Construed Together The Request for Proposals, the Proposal and all documents referred to in the complete specifications and the Agreement to be entered into between the Proposer and the City, and all modifications of said documents, shall be construed together as one document. 6.7 Errors and Omissions Proposer(s) shall not be allowed to take advantage of any errors in or omissions in the Request for Proposal. Full instructions will be given if such error or omission is discovered and called in a timely manner to the attention of the City. 6.6 Evidence of Financial Ability At the option of the City, Proposers may be required to furnish evidence of sufficient financial ability and responsibility to enable them to fulfill this Agreement. 6.9 Firm Commitment of Availability of Service Once a proposal is opened, a Proposer is otherwise expected to maintain an availability of service as set forth in its proposal for the stated prices for the full Agreement term after date of opening proposals. RFP 16-140 November 2016 17 25E-71 6.10 Intellectual Property Rights All work performed by temporary contract service personnel/consultants for the City becomes the sole property of the City of Santa Ana, and the City retains all rights to that work. 6,11 Invoices Proposer(s) will submit invoices upon completion of work performed. As a basis for payment of invoices, temporary staff/consultantsmust provide Proposer(s) with a timesheet for each billing period, signed by their City of Santa Ana supervisor. This timesheet must show the project assignment/s during the billing period and hours worked for each project. All invoices submitted for payment must show the breakdown of hours actually worked for each individual according to their timesheets. The City will pay invoices within 30 days after approval by the City Agreement administrator. No purchase orders will be issued. 6.12 Labor and Wage Requirements The Proposer shall be fully responsible for ensuring: a) The payment of all salaries, wages, bonuses, Social Security, Workers' Compensation taxes, Federal and State Unemployment Insurance, and any and all taxes relating to the personnel furnished under this agreement. b) Withholding State and Federal Income taxes c) P.I.C,A. taxes d) Providing Workers' Compensation for its personnel e) Compliance with all other laws relating to employees and contract personnel, such as wage and hour laws, safety and health requirements, and collective bargaining laws. 6.13 Orders The City does not guarantee any specific number of hours or assignments will be made during the life of this agreement. City requirements for temporary services not specified inthis proposal will be contracted on the open market in the customary manner. Proposer(s) will be required to provide some mutually acceptable means for the City to contact them during normal business hours of 8:00 a.m. to 5 p.m. Pacific Time, Monday through Friday. 6.14 Overtime and Holidays The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate, RFP 16 14b November 2616 18 25E-72 The following are City Holidays: • New Year's Day • Martin Luther King Jr. Day • Presidents' Day • Memorial Day + Independence Day • Labor Day • Veterans Day • Thanksgiving Day (2 days) • Christmas Eve • Christmas Day 7. SUPPLEMENTAL QUESTIONS Proposer must include: a. Short summary description of the organization b. Short summary description of the ownership c. Description of the major service offered by the Proposer's firm d. List of acceptable invoicing frequencies. (i.e., weekly, bi-weekly, semi-monthly, monthly) e. The number of years that the Proposer has been in the business of providing temporary technology contract service personnel and/or consulting services of the kind sought by the City. (if company name or ownership has changed of the period cited, please note and explain.) f. Description of the overall qualifications of the Proposer, including its experience and its ability to provide temporary technology contract service personnel and/or consulting services g. Description of any unique qualifications and experience that distinguish the Proposer's ability to provide temporary technology staffing and/or consulting h. Confirmation of the Proposer's willingness and capability to agree to and to follow the terms and processes outlined in this RFP and any resulting agreement including all administrative and billing procedures of the City i. Description of any other information the Proposer feels is relevant in helping the City gauge the Proposer's business stability j. No more than three (3) samples of the style of resumes that your firm would provide to clients. (This will allow the City to assess the readability of the formats and the usefulness of contents of the resumes the City could expect from the Proposer. These resumes will not be used to rate potential candidates.) k. List of the types of technology specialties for which the Proposer provides temporary placements or consulting services. (For example, if you only provide consulting services for a specific product or skill -set, please specify.) I. List of any unique qualifications and/or experience that distinguish the Proposer's ability to provide temporary Contract Service Personnel or consulting services in the various technology RFP 16-W November 2016 19 25E-73 fields/specialties. For example, a Proposer may have the capability to provide emergency placements with 24 hours, to conduct technical qualifying testing, to use highly -qualified technology screeners to evaluate and rate candidates'skills, to employ special techniques to track a placed contractor's performance, to provide on -call for specialized technology needs, etc, these are examples only and not mandatory services or qualifications. m. Description of Proposer's methods used to identify potential candidates n. Description of Proposer's methods used to screen candidates and to match their qualifications against the requirements of a City job assignment o. Description of Proposer's methods used to assess and confirm candidate's technology skills/knowledge, experience, work habits, interpersonal skills, etc. p. Description of Proposer's methods used to establish candidate availability with respect to the project schedule of the City assignment q. Description of the quality (as opposed to quantity) of the candidates within a job assignment (e.g. City seeks senior network engineer) that the Proposer can provide r. Explanation of any training opportunities made available by the Proposer for technology personnel engaged with the City s. Explanation of any effort the Proposer takes to ensure that the technology knowledge and skills of its staff engaged with the City are maintained and refreshed during long term engagements with the City I. Description of any programs and benefits provided by the Proposer to its Contract Service Personnel and Consultants engaged with the City that ensure their retention for the period required by the City u. Confirmation that there are no penalties to the City, Contract Service Personnel or consultants if the individual was to become a City employee. If there is a minimum amount of contract time that would need to occur, specify that amount of time (e.g, After six months of placement, Contract Service Personnel may be hired without any penalties, etc.). RFP 16-140 November 2016 PZ#11 25E-74 EXHIBIT B 25E-75 EXHIBIT C - PROPOSERS CERTIFICATION and PROPOSAL ITEM PRICING CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES Certification - I certify that 1 have read, understand and agree to the terms and conditions of this Request for Proposals. I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests, I understand and agree that I am responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal. 1. APPLICATION/TECHNOLOGY-SPECIFIC PRICING Complete this table if your organization consists of permanent employees who specialize in a specific application or technology and have fixed standard pricing. For example, you may provide a Lawson Technical resource or a Highl-ine functional resource. These should be actual committed rates that would good for the entire term of the agreement, including the optional renewals. Onsite rates should be fully inclusive of all travel costs. Add as many rows as necessary. Applicationi Resource Type',, : --,Hourly Rate Hourly Ra -Minimum Technology ;- (Offsite, no travel) , (Onsita, inc travel) Hours 108/Mobile iOS, HTML5, Java $145 $145 20/week Programmer Software VB, C#, PHP, etc. $145 $145 20/week Developers Database SQL, CLAP, OLTP, $145 $145 20/week Developer lettr 2. GENERAL STAFFING PRICING Complete these tables if your organization hires temporary employees or subcontractors to fill assignments (staffing firm model) for each of the Technology Specialties listed in Table 1, Exhibit A, Section 4. For example, you may provide a System Analyst or a Network Engineer. Estimated Rates These rates are just estimates based on current engagements that you have. Actual rates will be quoted at the time of order placement per the process described in Exhibit A, Section ` Technology Specialty Estimated Hourly Rate (Offsite, no travel) Estimated Hourly Rate (Onsite, inc. travel)- Minimum Hours Hel desk Level 1 Dsktc Su $50 $56 0/week Hel desk Level 2 $60 $65 32/week Hei desk Level 3 (Analyst) $105 $105 24/week Network Engineer $112 $112 24/week 25E-76 Markup Percentages This reflects the markup percentages used by your firm to when staffing Contract Service Personnel with the City. The first row reflects the markup if the Proposer(s) are asked to find a resource. Since this scenario requires additional marketing costs, it is expected the markup will be higher. The second row should reflect the markup if a resource has already been identified and no marketing is required. Furthermore, identify the different markup percentages between a W2 employee and Corp -to -Corp resource. Finally, estimate approximately how many hours would be necessary before the markup (and corresponding rate) would drop to that of the Identified resource markup percentage. These percentages should remain fixed throughout the entire term of the agreement, including optional renewals. Technology Specialty W2 Corp -to- Est. Hours Until Employee Corp Rate Drops to Markup % Markup Identified % Resource Markup % Proposer Found Resource 15% 17.5% Identified Resource 10% 15% N/A * To be determined at acceptance of candidate Scientia Consulting Group 714-978-9800 LEGAL NAME OF COMPANY PHONE AND FAX NUMBERS 1591 S. Sinclair Street, #B, Anaheim, CA 92806 BUSINESS ADDRESS Phillip Danie Principal Officer and CEO PRINTED NAME OF AUTHORIZED TITLE AGENT SIGNATURE OF AUTHORIZED AGENT FEDERAL ID NUMBER (IF APPLICABLE) CONTRACTOR LICENSE NUMBER (IF APPLICABLE) THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PRQPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. 25E-77 25E-78 Exhibit AGREEMENT TO PROVIDE INFORMATION TECHNOLOGY PROFESSIONAL SERVICES ON AN ON -CALL BASIS THIS AGREEMENT is made and entered into this 7th day of February, 2017 by Siena Cybermetrics, Inc., a California corporation. ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. On November 15, 2016, the City issued Request for Proposal No. 16-140, by which it sought consultants to furnish information technology ("IT") professional services on an on -call basis. B. Consultant submitted a responsive proposal that was among seven selected by the City. Consultant represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 16-140 and attached herein as Exhibit A. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from aprofessional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES On an as.needed basis, and at the sole discretion of City, Consultant shall famish IT professional consulting services as described in Exhibit A to this Agreement. Consultant's proposal is incorporated by reference as though fully set forth herein. When the need for a temporary technology service arises, the City may contact anyor all of Consultants selected for an agreement under RFP 16-140 through the Order Process outlined in Section 2 below. 2. ORDER PROCESS When the need for a temporary technology service arises, the City may contact any or all of the Consultants awarded an agreement pursuant to RFP No. 16-140. City will provide the assignment details and necessary qualifications to the Consultant and a point -of -contact for the assignment. a. The City's point -of -contact is available to answer any questions Consultant(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. b. The Consultant(s) will conduct a search (if necessary), match and qualify process skills (including technology assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. C. The Consultant(s) will provide the City's point -of -contact with resumes of qualified potential candidates. d. The Consultant(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. e. From the candidates offered by the Consultant(s), the City may elect a telephone or in - person interview with one or more of the potential candidate(s). The City's point -of -contact will get in touch with the Consultant(s) to work out arrangements. 1 25E-79 £ The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. g. When the City has identified the candidate that it wished to engage and has notified the Consultant, the Consultant will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terms and conditions of the terms of engagement with the City. It. One the Consultant has completed the cheeks and confirmations, the Consultant will notify the City and finaldetailswill be worked out. i. The City Agreement manager will send a confirming electronic email message to the Consultant as final confirmation of the engagement. j. After a candidate has been accepted but prior to the beginning the engagement, the Consultant will inform the candidate on pertinent Consultant business procedure (e.g. time reporting, requesting time off, personnel benefits, etc.) k. After an engagement starts, the Consultant will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. COMPENSATION a. Consultant is one of seven Consultants selected to provide IT professional services on an as -needed basis. Consultants have been selected pursuant to a competitive RFP process (RFP No. 16-140). The total fiords for all IT professional services provided by all seven Consultants is a collective amount not to exceed three million dollars ($3,000,000) per year for a total collective amount not to exceed twelve million dollars ($12,000,000) if all of the extensions are utilized. Consultant understands and acknowledges the following: (1) City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. It is possible that City may not utilize Consultant's services at all; and (2) Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in the order process but not to exceed the parameters outlined in Consultant's Certification and Proposal Item Pricingl attached hereto as Exhibit B. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not bemade for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on the date stated above and continue through, February 6, 2018, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for three (3) one (1) year periods upon a writing executed by the City Manager and the City Attorney. If the Agreement is extended, all terms and conditions, including pricing shall remain the same and apply during the extended terns. ;-Exhibit C of Consultant's proposal in response to RFP No. 16-140. 25E-80 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings; estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any; to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement; including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Workers' Compensation Insurance. In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for 3 25E-81 workers' compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. c. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iv) Consultant shall supply City with a filly executed additional insured endorsement. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to fiumish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. S. HOLD HARMLESS/INDEMNIFICATION To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligence or willful misconduct of the Consultant or its, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Consultant's indemnification obligations in this section shall survive expiration of this Agreement. Notwithstanding the 4 25E-82 foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify, and hold harmless City, its officers, agents, representatives, and employees against any and all liability or losses, including costs and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright, alleged or contained in the work product or documents provided or used by Consultant under this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 11. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information; but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (e) is in rightful possession of the Consultant an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which world conflict in any manner with the performance of services specified under this Agreement. 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or 5 25E-83 certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714-647-6956 With courtesy copies to: Chief Technology Innovations Officer Information Technology Department City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 And City Attorney City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, CA 92702 Fax (714) 647-6956 To Consultant: Sierra Cybermetrios, Inc. 5140 East La Palma Avenue, Suite 201 Anaheim Hills, CA 92807 Fax (714) 921-2086 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter therein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or 6 25E-84 conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terns and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 16. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, orremedy. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 7. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, City may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 18. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS Contractor shall perform all requirements under this contract in strict observance of and in compliance with all applicable laws, regulations, ordinances, codes, and any other legislative or statutory requirements. 19. NONDISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity 7 25E-85 employer and shall comply with all applicable federal, state and local laws and regulations, 20. BACKGROUND INVESTIGATIONS Unless exempted by the City, Consultant will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department ("SAPD") will be required to pass an SAPD background investigation prior to beginning work with SAPD, Full name, address, phone number, birth date, Social Security number and driver's license number must be furnished to the City upon request. An application for SAPD background must be completed by each prospective contract service person who will be providing on -site services to SAPD. 21. OVERTIME AND HOLIDAYS The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked under this Agreement. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or adesignated manager and then only at a straight time rate. 22. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that maybe brought or arise out of, in connection with or by reason of this Agreement. 23. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 24. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and tight to bind their respective parties to each of the terns of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 25E-86 b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date acid year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: C i tLL A 'VA1'-"&1 nA Laura A. Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: Jack Cinlla Chief Technology Innovations Officer Information Technology Department CITY OF SANTA ANA Gerardo Monet Acting City Manager CONSULTANT: Carl La Plante President Sierra Cybennetrics, Inc. 9 25E-87 EXHIBITA 25E-88 EXHIBIT A - SCOPE OF SERVICES CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES DESCRIPTION AND SCOPE OF WORK The City of Santa Ana is soliciting proposals from qualified Proposers who can provide technology contract service personnel and consulting services on an as needed basis for a one- year period, with possible extensions of three (3) additional one-year periods. This term is subject to final approval by the Santa Ana City Council. Services under any resulting agreement will be for the Information Technology Department (ITD). ITD will administer agreement(s) resulting from this RFP. It is anticipated that the services provided through these agreements would be used in five (5) distinct manners: • Provide staff for temporary situations that do not justify the addition of regular City staff. (junior- and senior -level) • Provide temporary contract service personnel with unique technology skills to act as a technical resource to project teams for projects that do not justify the addition of regular staff. • Provide additional resources for situations that exceed the capacity of existing City staff, • Provide project -based consulting and implementation support (fixed or hourly cost). • Provide managed services based on service, (i.e., server support per server, desktop support per PC, etc.) All five (5) situations require highly qualified, technology contract service personnel who perform exceptionally well in their specialties. Technology contract service personnel and consultants will work individually as technical resources or as members of project teams, and will be under the overall general direction of City technology management. In certain instances, sub -projects may be contracted out. 1. OVERVIEW OF EXISTING SYSTEMS a. Infrastructure • About 40 physical Wintel-based servers and 250 + VMware virtualized servers supporting enterprise applications/services, local area networks and various department -specific applications • Multiple HP storage systems including Left Hand and 3PAR, SAN nodes and clusters utilize !SCSI and Fiber Channel interfaces. RFP 16 140 November 2016 25E-89 « Gigabit Ethernet fiber links through City Hall and connected annex • Multiple network segments supporting more than 24 City operating locations interconnected via a wide area network + Approximately 250 Aruba wireless access points throughout City Hall and most remote City facilities, wireless network access is available for City staff and guest access. » Switched Ethernet backbone in City Hall connecting City Hall LANs and computer operating in the Central Computer Center • Mobile Device Management system utilized to manage and secure 334 personal ano City issued smartphones and tablets • The City's telecommunications network serves 22 operating locations through an AT&T network of local, T-1, Fiber Optic and OPX lines with approximately 3,352 equipped voice ports, 40 voicemail ports, 2,104 telephone extensions and 1,773 telephone instruments. • The existing telecommunications infrastructure is comprised of 14 NEC telephone switches (NEAR 2400 IPX, NEAX 2000 IPX, NEAX 2000 IPS), key systems (NEAX 1NFOSET 408) and 32 VoIP telephones plus a CENTIGRAM 640 voice processing system with 40 ports and 120 hours of storage. • The City has adopted the ANSI/EIA/TIA and NEC standards, as well as BICSI design and installation methods for all materials, installation, testing, configuration and documentation of the City telecommunications infrastructure. These guidelines are based upon widely used industry standards such as, but not limited to, EIA/TIA 568, 569, 570, 606A, 607, including all TSB's, and the NEC codes related to Telecommunications Infrastructures. b. Applications • Infer Lawson financial application • Highline HR/Payrotl application • Laserfiche document management • ESRl GIS • CherwelllTSM • IVOS Workers' Compensation • Tritech CAD and RMS • iNovah cashiering • Systems and Software's enQuesta CIS • Drupal CMS • Various .NET -based homegrown applications • Various Microsoft Access -based applications c. Desktop/Mobile. • Approximately2,000 Dell desktop and laptop computers s Approximately 300 Apple Whone, Apple iPad and Samsung Galaxy devices RFP 16-140 November 2016 IF 25E-90 Z SERVICES BEING SOUGHT The City seeks Proposers to provide contract service personnel with specific technology skills to perform assignments of varying length. Multiple pre -approved Proposers may be contacted to propose resources and a quote for a requested assignment/project. In response to requests from the Information Technology Department, the Proposer(s) shall: a. Research their roster of personnel and/or recruit for potential candidates. b. Screen available candidates in order to match technology skills and work experience with requirements of the Cityjob assignments. c. Confirm candidate qualifications including technology skills, experience, work habits, interpersonal skills, quality of work performed, reference checks, etc. d. Confirm candidate availability for the City assignment. e. Provide the Information Services Division with resumes of screened qualified candidates (identifying skills, work experience and education) and their charge (i.e. bill) rates. f. Upon the City`s conditional acceptance of a candidate, conduct background checks (See Section 6.1 for details). g. After a candidate has been accepted but prior to beginning the engagement, inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g. time reporting, requesting time off, personnel benefits, etc.) h. After an engagement starts, monitor their personnel/s' performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. There is no guarantee as to the number of times a Proposer will be used or the dollar amount that will be expended with them. 3. PROPOSER RESPONSIBILITIES a. Proposer(s) will be responsible for all payments and benefits for contract service personnel placed on assignments with the City, including payroll, taxes, other withholding, vacation, other benefits, etc. (See Section 6.13 for details). b. Proposer(s) will be responsible for the conduct of any temporary contract service personnel placed with the City. If, at the sale discretion of the City, a temporary contract service person is determined to be unsatisfactory for any reason, the Proposer will withdraw the individual upon notification by the City. The City will not be charged for the period of unsatisfactory service. c. Proposer(s) will provide training and education programs for their personnel on assignment with the City. This is intended to ensure that these personnel remain technically knowledgeable to perform their assignments for the City. Proposer(s) will provide programs that will promote the retention of their personnel on assignment with the City. RPP 16-140 November 2016 13 25E-91 4. DESCRIPTION OF TECHNOLOGY POSITIONS TO BE PROVIDED The skills and services will be needed in the technology categories of: • Application & Development Services • Telecommunications Services • User Support Services • Business / Application / Project Consulting Services • Technology Operations & Support Services Specific abilities required will vary depending on the operations and projects involved, Detailed identification of knowledge, skills, abilities, experience and education will be provided for each assignment with the City. Table 1, below, shows a sample of technology -related positions by category for which the City may seek Proposer(s) to provide contract service personnel. This list is not exhaustive or fixed. As the technology needs of the City change, the technology specialties sought will also change. This list does demonstrate the range and depth of technology fields and positions potentially sought by the City. Contract service personnel and consultants may be expected to perform other related duties not specifically detailed herein or in the City's pre -engagement description of the assignment (at the quoted rate) but that are generally within the scope of the job classification requirements for knowledge skills and abilities specified. The City does not require that each Proposer be able to provide candidates for all the range and depth of technology job positions covered by this RFP. Each Proposer will be asked in its proposal to identify the technology category or categories for which it can provide qualified candidates or consulting services to the City. RFP 16-140 November 2016 14 25E-92 Table 1 • Potential Technology Specialties by Category (caution: List is not comprehensive) Applications & Development Services • Systems Architect and Engineer • Systems Analyst • Programmer/Developer (MS Windows Visual Studio and SQL for olient/server environment) • Web Developer (.NET/PHP) • Database Administrator (MS SQL) • Document Imaging Application Specialist • Business Intelligence Specialist • Mobile App developer (iOS & android OS) Telecommunications Services • Telephone System Administrator • Telephone System Engineer • Voice System Engineer (Centigram) • Cabling Installer User Support Services • Help Desk Specialist. • IT Support Specialist (Desktop) • Mobility Technology Coordinator • IT Support Intern RFP 16�1A0 November 2,016 Business / Application / Project Consulting Services • IT Business Analyst (with municipal government experience) • Project Lead (for deployment of purchased software application) • Project Lead (for software development project) • Technology Consultant for specialized application (See Section A above, e.g., Lawson, HighLlne, etc.) • System Evaluation & Selection Consultant Technology Operations & Support Services • Infrastructure Architecture /Planning Engineer • Network Engineer (Cisco) • Network Security Engineer (Cisco) • Network Specialist —LAN Administrator (Cisco) • MS Exchange Engineer • Anti -Virus & Anti-SPAM Services Administrator • Data Center Engineer (HP servers, Win OS, VMware, HP SAN) • Wireless infrastructure Engineer (Aruba) tN 25E-93 5. ORDER PROCESS When a need for temporary technology contract services or consulting arises, the City may contact any or all of the Proposer(s) (those Proposers selected and awarded an agreement) a. The City will provide the assignment details and necessary qualifications to the Proposer(s) and a point -of -contact for the assignment. b. The City's point -of -contact is available to answer any questions Proposer(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. c. The Proposer(s) will conduct a search (if necessary), match and qualify process skills (including technical assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. d. The Proposer(s) will provide the City's point -of -contact with resumes of qualified potential candidates. e. The Proposer(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. f. From the candidates offered by Proposer(s), the City may elect to conduct a telephone or in -person interview with one or more of the potential candidate(s). The City's point -of -contact will get in touch with the Proposer(s) to work out the arrangements. g. The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. h. When the City has identified a candidate that it wishes to engage and has notified the Proposer, the Proposer will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terms and conditions of an engagement with the City. i. Once the Proposer has completed the checks and confirmations, the Proposer will notify the City and final details will be worked out. j. The City agreement manager will send a confirming electronic mail message to the Proposer as final confirmation of the engagement. k. After a candidate has been accepted but prior to beginning the engagement, the Proposer will inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g. time reporting, requesting time off, personnel benefits, etc.) I. After an engagement starts, the Proposer will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 6. TERMS & CONDITIONS The following terms and conditions will be Included in any subsequent agreement with the City. These terms and conditions are being repeated in this RFP due to their special impact in defining a contractual relationship between prospective Proposer(s) and the City. 6.1 Background Investigations Unless exempted by the City, Proposer(s) will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department (SAPD) will be required to pass a SAPID background investigation prior to beginning work with SAPID. Full name, address, phone number, birth date, Social Security number and driver's license number RIT 16-140 November 2016 16 25E-94 must be furnished to the City upon request. An application for SAPID background must be completed by each prospective contract service person who will be providing on -site services to SAPID. 6.2 Certificate of Insurance Proof of insurance is NOT required to be submitted with the proposal, but it will be required prior to the City's award of any Agreement. Proposers should carefully consider the City insurance requirements and the related documentation included in the Sample Agreement (See Appendix B) and in the Sample Insurance Forms (See Appendix G). Proposals should be based on full and complete compliance with all parts and directions relating to these insurance requirements. 6.3 City Responsibilities There is no guarantee as to the number of times an agency will be used or the dollar amount that will be expended with them. 6.4 Cancellation The agreement may be cancelled by either party with 30 days' written notice. 6.5 Contract Service Personnel & Consultants This Agreement shall not render the Contract Service Personnel and Consultants an employee, partner, agent of or joint venturer with the City for any purpose. Any Contract Service Personnel and Consultant is and will remain an independent contractor in (his or her) relationship to the City. The City shall not be responsible for withholding taxes with respect to the Service Personnel's and Consultant's compensation hereunder. The Contract Service Personnel and Consultant shall have no claim against the City hereunder or otherwise for vacation pay, sick leave, retirement benefits, Social Security, worker's compensation, health or disability benefits, unemployment Insurance benefits or employee benefits of any kind. 6.6 Documents to Be Construed Together The Request for Proposals, the Proposal and all documents referred to in the complete specifications and the Agreement to be entered into between the Proposer and the City, and all modifications of said documents, shall be construed together as one document. 6.7 Errors and Omissions Proposer(s) shall not be allowed to take advantage of any errors in or omissions in the Request for Proposal. Full instructions will be given if such error or omission is discovered and called in a timely manner to the attention of the City. 6.8 Evidence of Financial Ability At the option of the City, Proposers may be required to furnish evidence of sufficient financial ability and responsibility to enable them to fulfill this Agreement. 6.9 Firm Commitment of Availability of Service once a proposal is opened, a Proposer is otherwise expected to maintain an availability of service as set forth in its proposal for the stated prices for the full Agreement term after date of opening proposals. RFP 16-140 November 2016 IWA 25E-95 6.10 Intellectual Property Rights All work performed by temporary contract service personnel/consultants for the City becomes the sole property of the City of Santa Ana, and the City retains all rights to that work. 6.11 Invoices Proposer(s) will submit invoices upon completion of work performed. As a basis for payment of invoices, temporary staff/consultants must provide Proposer(s) with a timesheet for each billing period, signed by their City of Santa Ana supervisor. This timesheet must show the project assignment/s during the billing period and hours worked for each project, All invoices submitted for payment must show the breakdown of hours actually worked for each individual according to their timesheets. The City will pay invoices within 30 days after approval by the City Agreement administrator. No purchase orders will be issued. 6.12 Labor and Wage Requirements The Proposer shall be fully responsible for ensuring: a) The payment of all salaries, wages, bonuses, Social Security, Workers' Compensation taxes, Federal and State Unemployment Insurance, and any and all taxes relating to the personnel furnished under this agreement. b) Withholding State and federal Income taxes c) F.I.C.A. taxes d) Providing Workers' Compensation for its personnel e) Compliance with all other laws relating to employees and contract personnel, such as wage and hour laws, safety and health requirements, and collective bargaining laws. 6,13 Orders The City does not guarantee any specific number of hours or assignments will be made during the life of this agreement. City requirements for temporary services not specified in this proposal will be contracted on the open market in the customary manner, Proposer(s) will be required to provide some mutually acceptable means for the City to contact them during normal business hours of 8:00 a.m, to 6 p.m. Pacific Time, Monday through Friday. 6.14 Overtime and Holidays The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. Rr-P 16,140 November 2016 m 25E-96 The following are City Holidays • New Year's Day • Martin Luther King Jr. Day • Presidents' Day • Memorial Day • Independence Day • Labor Day • Veterans Day + Thanksgiving Day (2 days) • Christmas Eve • Christmas Day 7, SUPPLEMENTAL QUESTIONS Proposer must include: a. Short summary description of the organization b. Short summary description of the ownership c. Description of the major service offered by the Proposer's firm d. List of acceptable invoicing frequencies. (i.a,, weekly, bi-weekly, semi-monthly, monthly) e, The number of Years that the Proposer has been in the business of providing temporary technology contract service personnel and/or consulting services of the kind sought by the City. (if company name or ownership has changed of the period cited, please note and explain.) f. Description of the overall qualifications of the Proposer, including its experience and its ability to provide temporary technology contract service personnel and/or consulting services g. Description of any unique qualifications and experience that distinguish the Proposer's ability to provide temporary technology staffing and/or consulting h. Confirmation of the Proposer's willingness and capability to agree to and to follow the terms and processes outlined in this RFP and any resulting agreement including all administrative and billing procedures of the City i. Description of any other information the Proposer feels is relevant in helping the City gauge the Proposer's business stability j. No more than three (3) samples of the style of resumes that your firm would provide to clients. (This will allow the City to assess the readability of the formats and the usefulness of contents of the resumes the City could expect from the Proposer, These resumes will not be used to rate potential candidates.) k. List of the types of technology specialties for which the Proposer provides temporary placements or consulting services. (For example, if you only provide consulting services for a specific product or skill -set, please specify.) I. List of any unique qualifications and/or experience that distinguish the Proposer's ability to provide temporary Contract Service Personnel or consulting services in the various technology RFP 16 140 November 2016 19 25E-97 fields/specialties. For example, a Proposer may have the capability to provide emergency placements with 24 hours, to conduct technical qualifying testing, to use highly -qualified technology screeners to evaluate and rate candidates'skills, to employ special techniques to track a placed contractor's performance, to provide on -call for specialized technology needs, eta These are examples only and not mandatory services or qualifications, m. Description of Proposer's methods used to identify potential candidates n, Description of Proposer's methods used to screen candidates and to match their qualifications against the requirements of a City job assignment o. Description of Proposer's methods used to assess and confirm candidate's technology skills/knowledge, experience, work habits, interpersonal skills, etc, p. Description of Proposer's methods used to establish candidate availability with respect to the project schedule of the City assignment q. Description of the quality (as opposed to quantity) of the candidates within a job assignment (e.g. City seeks senior network engineer) that the Proposer can provide r. Explanation of any training opportunities made available by the Proposer for technology personnel engaged with the City s. Explanation of any effort the Proposer takes to ensure that the technology knowledge and skills of its staff engaged with the City are maintained and refreshed during long term engagements with the City I. Description of any programs and benefits provided by the Proposer to its Contract Service Personnel and Consultants engaged with the City that ensure their retention for the period required by the City u. Confirmation that there are no penalties to the City, Contract Service Personnel or consultants if the individual was to become a City employee. If there is a minimum amount of contract time that would need to occur, specify that amount of time (e,g, After six months of placement, Contract Service Personnel may be hired without any penalties, etc.). RFP 16,140 November 2016 20 25E-98 EXHIBIT B 25E-99 CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES Certification - I certify that I have read, understand and agree to the terms and conditions of this Request for Proposals. I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests. I understand and agree that I am responsible for reporting anyerrors, omissions or discrepancies to the City for clarification prior to the submission of my proposal. 1. APPLICATION/TECHNOLOGY-SPECIFIC PRICING Complete this table if your organization consists of permanent employees who specialize in a specific application or technology and have fixed standard pricing. For example, you may provide a Lawson Technical resource or a Highl.ine functional resource. These should be actual committed rates that would good for the entire term of the agreement, including the optional renewals. Onsite rates should be fully inclusive of all travel costs. Add as many rows as necessary. Appiication/Technology Resouree'Type Hourly Rate' Offsite, no: iravel HourlyFiate; ;" Onsife; Inc: travel iMinirtium `;, Hours 2. GENERAL STAFFING PRICING Complete these tables if your organization hires temporary employees or subcontractors to fill assignments (staffing firm model) for each of the Technology Specialties listed in Table 1, Exhibit A, Section 4. For example, you may provide a System Analyst or a Network Engineer, Estimated Rates These rates are just estimates based on current engagements that you have. Actual rates will be quoted at the time of order placement per the process described in Exhibit A, Section 5. Add as many rows as necessary. ,Technology Specialty Estimated Hourly Rate,'I Offslte, no uiv_ 1J. Estimated Hctirly_Ra#e IOnstto, lnc. travel Minimum=. 'Hours Markup Percentages This reflects the markup percentages used by your firm to when staffing Contract Service Personnel with the City. The first row reflects the markup if the Proposer(s) are asked to find a resource. Since this scenario requires additional marketing costs, it is expected the markup will be higher. The second row should reflect the markup if a resource has already been Identified and no marketing is required. Furthermore, identify the different markup percentages between a W2 -employee and Corp -to -Corp resource. Finally, estimate approximately how many hours would be necessary before the markup (and corresponding rate) would drop to that of the Identified resource markup percentage. These percentages should remain fixed throughout the RFP 16-140 November 2016 27 25E-100 entire term of the agreement, including optional renewals, Tech�roiogyS eW [? W2 Emp[ayee' MCorp t Corp' staHq U rtll tt$eii ops >..,,t. �,, t,. a v Iflark °cam Proposer Found Resource S&-e oc ce ia6 2, Identified Resource - 16 be aerermrneo at acceptance or canaiaate LEGAL NAME OF COMPANY PHONE AND FAX NUMBERS BUSINESS ADDRESS Carl 44.11�,�e PRINTED NAME OF U H RIZED AGENT 1// / SIGNATURE OF AUTHOR E EDERAL ID NUMBER (IF TITLE G�P/4.4c/rC E-MAILA DRESS W S NUMBER (IF APPLICAE m THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL, PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. _ RFP 16-140 November 2016 - pg 25E-101 Table 1-Sierra Cybernetics Estimated Rates Technology Specialty Estimated Hourly Rate Estimated Hourly Rate Minimum (Offsite, no travel) (Onsite, travel) Hours Cannot estimate travel w/o further details App and Development Services Systems Architect $110-$130 $110-$130 N/A Systems Analyst $70 - $80 $70 - $80 N/A Programmer / Developer $77 - $94 $77 - $94 N/A Web Developer $65 - $80 $65 - $80 N/A Database Administrator $80-$98 $80-$98 N/A Document Imaging Specialist $65-$79 $65-$79 N/A BI Specialist $80 - $98 $80 - $98 N/A Mobile App Developer $77 - $94 $77 - $94 N/A Telecommunications Services Telephone System Administrator $19 - $24 $19 - $24 N/A User Support Services Help Desk Specialist $40 - $50 $40 - $50 N/A IT Support Specialist(Desl(top) $52-$62 $52-$62 N/A Business/App/Project Consult IT Business Analyst (w/gov exp) $72 - $85 $72 - $85 N/A Proj Lead (deployment) $70 - $84 $70 - $84 N/A Proj Lead (sw development) $80-$98 $80-$98 N/A Technology Consultant $90-$110 $90-$110 N/A Tech Operations and Support Network Engineer $80-$98 $80-$98 SIERRA CYBERNETICS Sierra Cybernetics Proprietary Information S December 2016 N/A 25E-102 Table 2 - Sierra Cybernetics Pricing and Markup Information Technology Specialty W2 Employee Markup Corp -to -Carp Markup Est Hours Until Rate Drops to See Note A below (Type 1 Consultants) Identified Resource Markup See Note B below Proposer Found See Note C below 18% Not Applicable Resource Identified See Note D below 9°Io Not Applicable Resource Note A — Sierra's basic markup consists of corporate overhead rate +general and administrative rate+ profit. That amounts to 22%. Note B — Because C2C consultants require less overhead, we reduce our basic markup on them from 22% to 18°%. Note C -- W-2 employees are provided benefits, which costs are additive to our basic markup. We offer W-2 employees three categories of employment (Types 2,3,4) with varying degrees of benefits, with three different markup percentages, in each case, the billing rate to the client Is the same, but the employee can choose a benefit package that best suits their need with a corresponding difference in their underlying pay rate. I.e., selection of lesser benefits results in a higher hourly pay rate, and conversely, to the employee.. We describe this arrangement as being "compensation neutral" so that, at the end of the day, the net value to the employee is targeted to be the same. Type 2 - No benefits. Sierra only withholds payroll taxes and pays the corporate social security, Medicare, and unemployment insurance costs. Total markup on top of pay rate is 33% Type 3 — Limited benefits. Type 2 plus paid leave days plus a stipend toward employee purchase of medical insurance, Total markup on top of pay rate is 41%. Type 4— Pull benefits. Fully -benefited employee with full taxes withheld, full insurance coverage, full paid leave, and access to Sierra's Cafeteria 125 Plan. Total markup on top of pay rate is 55%. Note D — We currently utilize this "payrolling" program with one of our other clients. The approach is the same as described under Note C, with the benefit percentages being the same, but the overhead plus G&A plus profit amount being only 9%. So, Type 2 markup = 20% Type 3 markup = 28% Type 2 markup = 42% SIERRA CYBERNETICS Sierra Cybernetics ProprietaryInformation 8 December 2016 25E-103 25E-104 Exhibit .5' AGREEMENT TO PROVIDE INFORMATION TECHNOLOGY PROFESSIONAL SERVICES ON AN ON -CALL BASIS THIS AGREEMENT is made and entered into this 7th day of February, 2017 by Softmaster, Inc., a California corporation. ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. On November 15, 2016, the City issued Request for Proposal No. 16-140, by which it sought consultants to furnish information technology ("IT") professional services on an on -call basis. B. Consultant submitted a responsive proposal that was among seven selected by the City. Consultant represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 16-140 and attached herein as Exhibit A. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from aprofessional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES On an as -needed basis, and at the sole discretion of City, Consultant shall furnish IT professional consulting services as described in Exhibit A to this Agreement, Consultant's proposal is incorporated by reference as though fully set forth herein. When the need for a temporary technology service arises, the City may contact any or all of the Consultants selected for an agreement under RFP 16-140 through the Order Process outlined in Section 2 below. 2, ORDER PROCESS When the need fora temporary technology service arises, the City may contact any or all of the Consultants awarded an agreement pursuant to RFP No.16-140. City will provide the assignment details and necessary qualifications to the Consultant and a point -of -contact for the assignment. a. The City's point -of -contact is available to answer any questions Consultant(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. b. The Consultant(s) will conduct a search (if necessary), match and qualify process skills (including technology assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. C. The Consultant(s) will provide the City's point -of -contact with resumes of qualified potential candidates. d. The Consultant(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. e. From the candidates offered by the Consultant(s), the City may elect a telephone or in - person interview with one or more of the potential candidate(s). The City's point -of -contact will get in touch with the Consultant(s) to work out arrangements. 25E'105 f. The Citywill select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. g. When the City has identified the candidate that it wished to engage and has notified the Consultant, the Consultant will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terms and conditions of the terms of engagement with the City. h. One the Consultant has completed the checks and confirmations, the Consultant will notify the City and final details will be worked out. i. The City Agreement manager will send a confirming electronic email message to the Consultant as final confirmation of the engagement. j. After a candidate has been accepted but prior to the beginning the engagement, the Consultant will inform the candidate on pertinent Consultant business procedure (e.g. time reporting, requesting time off, personnel benefits, etc.) k. After an engagement starts; the Consultant will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 3. COMPENSATION a. Consultant is one of seven Consultants selected to provide IT professional services on au as -needed basis. Consultants have been selected pursuant to a competitive RFP process (RFP No. 16-140). The total funds for all IT ,professional services provided by all seven Consultants is a collective amount not to exceed three million dollars ($3,000,000) per year for a total collective amount not to exceed twelve million dollars ($12,000,000) if all of the extensions are utilized. Consultant understands and acknowledges the following: (1) City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. It is possible that City may not utilize Consultant's services at all; and (2) Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in the order process but not to exceed the parameters outlined in Consultant's Certification and Proposal Item Pricing' attached hereto as Exhibit B. b: Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on the date stated above and continue through, February 6, 2018, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for three (3) one (1) year periods upon a writing executed by the City Manager and the City Attorney. If the Agreement is extended, all terns and conditions, including pricing shall remain the same and apply during the extended terms. �-Exhihit. C of Consultant's proposal in response to RFP No. 16-140. 25E-406 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional mariner in which Consultant performs the services which are the Subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Workers' Compensation Insurance. In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for 25E3107 workers' compensation or to undertake self-insurance. prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,Ooo,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer; professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iu) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iv) Consultant shall supply City with a fully executed additional insured endorsement. £ If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. g, HOLD HARMLESS/INDEMNIFICATION To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless the City, its officers, agents, employees; consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligence or willful misconduct of the Consultant or its, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement, and (2) from any claim that personal injury; damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered; by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Consultant's 25E-1408 indemnification obligations in this section shall survive expiration of this Agreement. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify, and hold harmless City, its officers, agents, representatives, and employees against any and all liability or losses, including costs and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright, alleged or contained in the work product or documents provided or used by Consultant under this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 11. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement.. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with the performance of services specified under this Agreement. 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be 25E-1- 09 in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714- 647-6956 With courtesy copies to: Chief Technology Innovations Officer Information Technology Department City of Santa Ana 20 Civic Center Plaza Santa Ana; CA 92702 [�1 City Attorney City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, CA 92702 Fax (714) 647-6956 To Consultant: Sofimaster, Inc. 1142 South Diamond Bar Boulevard, Suite 386 Diamond Bar, CA 91765 Fax A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall he effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall he excluded, 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter therein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the 25E-s110 terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any teens or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 16. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, tight, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, City may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 18. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS Contractor shall perform all requirements under this contract in strict observance of and in compliance with all applicable laws, regulations, ordinances, codes, and any other legislative or statutory requirements. 19. NONDISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age; national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities 25E-7111 or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 20. BACKGROUND INVESTIGATIONS Unless exempted by the City; Consultant will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City), Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department ("SAPD") will be required to pass an SAPD background investigation prior to beginning work with SAPD. Full name, address, phone number, birth date; Social Security number and driver's license number must be furnished to the City upon request.. An application for SAPD background must be completed by each prospective contract service person who wilt be providing on -site services to SAPD. 21. OVERTIME AND HOLIDAYS The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked under this Agreement. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. 22. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 23. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 24. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by 25E-112 the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney ByAailto f i %.0 .Vt"viV Laura A. Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: Jack Ciulla Chief Technology Innovations Officer Information Technology Department CITY OF SANTA ANA Gerardo Monet Acting City Manager CONSULTANT: James Barnett Chief Operating Officer Softmaster, Inc. 25EA 13 EXHIBIT A 25E-114 EXHIBIT A - SCOPE OF SERVICES CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS•NEEDED PROFESSIONAL SERVICES DESCRIPTION AND SCOPE OF WORK The City of Santa Ana is soliciting proposals from qualified Proposers who can provide technology contract service personnel and consulting services on an as needed basis for a one- year period, with possible extensions of three (3) additional one-year periods. This term is subject to final approval by the Santa Ana City Council. Services under any resulting agreement will be for the Information Technology Department (ITD). ITD will administer agreement(s) resulting from this RFP. It is anticipated that the services provided through these agreements would be used in five (5) distinct manners: • Provide staff for temporary situations that do not justify the addition of regular City staff. (junior- and senior -level) • Provide temporary contract service personnel with unique technology skills to act as a technical resource to project teams for projects that do not justify the addition of regular staff. • Provide additional resources for situations that exceed the capacity of existing City staff. • Provide project -based consulting and implementation support (fixed or hourly cost). • Provide managed services based on service. (i.e., server support per server, desktop support per PC, etc.) All five (5) situations require highly qualified, technology contract service personnel who perform exceptionally well in their specialties. Technology contract service personnel and consultants will work individually as technical resources or as members of project teams, and will be under the overall general direction of City technology management. In certain Instances, sub -projects may be contracted out. 1. OVERVIEW OF EXISTING SYSTEMS a. Infrastructure • About 40 physical Wintel-based servers and 250 + VMware virtualized servers supporting enterprise applications/services, local area networks and various department -specific applications • Multiple HP storage systems including Left Hand and 3PAR. SAN nodes and clusters utilize iSCSI and Fiber Channel interfaces. RFP 16-140 November 2016 25E-115 • Gigabit Ethernet fiber links through City Hall and connected annex • Multiple network segments supporting more than 24 City operating locations interconnected via a wide area network • Approximately 250 Aruba wireless access points throughout City Hall and most remote City facilities. Wireless network access is available for City staff and guest access. • Switched Ethernet backbone in City Hall connecting City Hall LANs and computer operating in the Central Computer Center • Mobile Device Management system utilized to manage and secure 334 personal and City issued smartphones and tablets • The City's telecommunications network serves 22 operating locations through an AT&T network of local, T-1, Fiber Optic and OPX lines with approximately 3,352 equipped voice ports, 40 voicemail ports, 2,104 telephone extensions and 1,773 telephone instruments. • The existing telecommunications infrastructure is comprised of 14 NEC telephone switches (NEAX 2400 IPX, NEAX 2000 IPX, NEAX 2000 IPS), key systems (NEAX INFOSET 408) and 32 VolP telephones plus a CENTIGRAM 640 voice processing system with 40 ports and 120 hours of storage. • The City has adopted the ANSI/EIA/TIA and NEC standards, as well as BICSI design and installation methods for all materials, installation, testing, configuration and documentation of the City telecommunications Infrastructure. These guidelines are based upon widely used industry standards such as, but not limited to, EIA/TIA 568, 569, 570, 606A, 607, including all TSB's, and the NEC codes related to Telecommunications Infrastructures. b. Applications • Infor Lawson financial application • Highline HR/Payroll application • Laserfiche document management • ESRI GIS • Cherwell ITSM • IVOS Workers' Compensation • Tritech CAD and RMS • iNovah cashiering • Systems and Software's enQuesta CIS • Drupat CMS • Various .NET -based homegrown applications • Various Microsoft Access -based applications c. Desktop/Mobile. • Approximately 2,000 Dell desktop and laptop computers • Approximately 300 Apple iPhone, Apple iPad and Samsung Galaxy devices RFP 18,140 Novembe( 2016 IF 25E-116 2. SERVICES BEING SOUGHT The City seeks Proposers to provide contract service personnel with specific technology skills to perform assignments of varying length. Multiple pre -approved Proposers may be contacted to propose resources and a quote for a requested assignment/project. In response to requests from the Information Technology Department, the Proposer(s) shall: a. Research their roster of personnel and/or recruit for potential candidates. b. Screen available candidates in order to match technology skills and work experience with requirements of the City job assignments. c. Confirm candidate qualifications including technology skills, experience, work habits, interpersonal skills, quality of work performed, reference checks, etc. d. Confirm candidate availability for the City assignment, e. Provide the Information Services Division with resumes of screened qualified candidates (identifying skills, work experience and education) and their charge (i.e. bill) rates. f. Upon the City's conditional acceptance of a candidate, conduct background checks (See Section 6,1 for details). g. After a candidate has been accepted but prior to beginning the engagement, inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g. time reporting, requesting time off, personnel benefits, etc.) h. After an engagement starts, monitor their personnel/s' performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. There is no guarantee as to the number of times a Proposer will be used or the dollar amount that will be expended with them. 3. PROPOSER RESPONSIBILITIES a. Proposer(s) will be responsible for all payments and benefits for contract service personnel placed on assignments with the City, including payroll, taxes, other withholding, vacation, other benefits, etc. (See Section 6.13 for details). b. Proposer(s) will be responsible for the conduct of any temporary contract service personnel placed with the City. If, at the sole discretion of the City, a temporary contract service person is determined to be unsatisfactory for any reason, the Proposer will withdraw the individual upon notification by the City. The City will not be charged for the period of unsatisfactory service. c. Proposer(s) will provide training and education programs for their personnel on assignment with the City. This is intended to ensure that these personnel remain technically knowledgeable to perform their assignments for the City. Proposer(s) will provide programs that will promote the retention of their personnel on assignment with the City. RFP 16.140 November 2016 13 25E-117 4. DESCRIPTION OF TECHNOLOGY POSITIONS TO BE PROVIDED The skills and services will be needed in the technology categories of • Application & Development Services • Telecommunications Services • User Support Services • Business / Application / Project Consulting Services • Technology Operations & Support Services Specific abilities required will vary depending on the operations and projects involved. Detailed identification of knowledge, skills, abilities, experience and education will be provided for each assignment with the City, Table 1, below, shows a sample of technology -related positions by category for which the City may seek Proposer(s) to provide contract service personnel. This list is not exhaustive or fixed. As the technology needs of the City change, the technology specialties sought will also change. This list does demonstrate the range and depth of technology fields and positions potentially sought by the City. Contract service personnel and consultants may be expected to perform other related duties not specifically detailed herein or in the City's pre -engagement description of the assignment (at the quoted rate) but that are generally within the scope of the job classification requirements for knowledge skills and abilities specified. The City does not require that each Proposer be able to provide candidates for all the range and depth of technology job positions covered by this RFP. Each Proposer will be asked in its propose( to Identify the technology category or categories for which it can provide qualified candidates or consulting services to the City. RFP 16-140 November 2016 14 25E-118 Table 1 - Potential Technology Specialties by Category (caution: List is not comprehensive/ Applications & Development Services • Systems Architect and Engineer • Systerns Analyst • Programmer/Developer (MS Windows Visual Studio and SOL for client/server environment) • Web Developer (.NET/PHP) • Database Administrator (MS SQL) • Document Imaging Application. Specialist • Business Intelligence Specialist • Mobile Apo developer (IOS & android OS) Telecommunications Services • Telephone System Administrator • Telephone System Engineer • Voice System Engineer (Centigram) • Cabling Installer User Support Services • Help Desk Specialist • IT Support Specialist (Desktop) • Mobility Technology Coordinator • IT Support Intern RFP 16-140 November U16 Business / Application / Project Consulting Services • IT Business Analyst (with municipal government experience) • Project Lead (for deployment of purchased software application) • Project Lead (for software development project) • Technology Consultant for specialized application (See Section A above, e.g., Lawson, HighLfne, etc.) • System Evaluation & Selection Consultant Technology Operations & Support Services • Infrastructure Architecture / Planning Engineer • Network Engineer (Cisco) • Network Security Engineer (Cisco) • Network Specialist— LAN Administrator (Cisco) • MS Exchange Engineer • Anti -Virus & Anti-SPAM Services Administrator • Data Center Engineer (HP servers, Win OS, VMware, HP SAN) • Wireless infrastructure Engineer (Aruba) is 25E-119 5. ORDER PROCESS When a need for temporary technology contract services or consulting arises, the City may contact any or all of the Proposer(s) (those Proposers selected and awarded an agreement) a. The City will provide the assignment details and necessary qualifications to the Proposer(s) and a point -of -contact for the assignment. b. The City's point -of -contact is available to answer any questions Proposer($) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. c. The Proposer(s) will conduct a search (if necessary), match and qualify process skills (including technical assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. d. The Proposer(s) will provide the City's point -of -contact with resumes of qualified potential candidates. e. The Proposer(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. I. From the candidates offered by Proposer(s), the City may elect to conduct a telephone or in -person interview with one or more of the potential candidate(s). The City's point -of -contact will get in touch with the Proposer(s) to work out the arrangements. g. The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. h. When the City has identified a candidate that it wishes to engage and has notified the Proposer, the Proposer will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terms and conditions of an engagement with the City. i. Once the Proposer has completed the checks and confirmations, the Proposer will notify the City and final details will be worked out. j. The City agreement manager will send a confirming electronic mail message to the Proposer as final confirmation of the engagement. k. After a candidate has been accepted but prior to beginning the engagement, the Proposer will inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g. time reporting, requesting time off, personnel benefits, etc.) I. After an engagement starts, the Proposer will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 6. TERMS & CONDITIONS The following terms and conditions will be included in any subsequent agreement with the City. These terms and conditions are being repeated in this RFP due to their special impact in defining a contractual relationship between prospective Proposer(s) and the City. 6.1 Background Investigations Unless exempted by the City, Proposer(s) will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department (SAPD) will be required to pass a SAPID background investigation prior to beginning work with SAPID. Full name, address, phone number, birth date, Social Security number and driver's license number RFP 16.140 November 2016 m 25E-120 must be furnished to the City upon request. An application for SAPID background must be completed by each prospective contract service person who will be providing on -site services to SAPD. 6.2 Certificate of Insurance Proof of insurance is NOT required to be submitted with the proposal, but it will be required prior to the City's award of any Agreement. Proposers should carefully consider the City insurance requirements and the related documentation included in the Sample Agreement (See Appendix B) and in the Sample Insurance Forms (See Appendix G). Proposals should be based on full and complete compliance with all parts and directions relating to these insurance requirements. 6.3 City Responsibilities There is no guarantee as to the number of times an agency will be used or the dollar amount that will be expended with them. 6.4 Cancellation The agreement may be cancelled by either party with 30 days' written notice. 6.5 Contract Service Personnel & Consultants This Agreement shall not render the Contract Service Personnel and Consultants an employee, partner, agent of or joint venturer with the City for any purpose. Any Contract Service Personnel and Consultant is and will remain an independent contractor in (his or her) relationship to the City. The City shall not be responsible for withholding taxes with respect to the Service Personnel's and Consultant's compensation hereunder. The Contract Service Personnel and Consultant shall have no claim against the City hereunder or otherwise for vacation pay, sick leave, retirement benefits, Social Security, worker's compensation, health or disability benefits, unemployment insurance benefits or employee benefits of any kind. 6.6 Documents to Be Construed Together The Request for Proposals, the Proposal and all documents referred to in the complete specifications and the Agreement to be entered into between the Proposer and the City, and all modifications of said documents, shall be construed together as one document. 6.7 Errors and Omissions Proposers) shall not be allowed to take advantage of any errors in or omissions in the Request for Proposal. Full instructions will be given if such error or omission is discovered and called in a timely manner to the attention of the City. 6.8 Evidence of Financial Ability At the option of the City, Proposers may be required to furnish evidence of sufficient financial ability and responsibility to enable them to fulfill this Agreement. 6.9 Firm Commitment of Availability of Service Once a proposal is opened, a Proposer is otherwise expected to maintain an availability of service as set forth in its proposal for the stated prices for the full Agreement term after date of opening proposals. PFP 16-140 November 2016 17 25E-121 6,10 Intellectual Property Rights All work performed by temporary contract service personnel/consultants for the City becomes the sole property of the City of Santa Ana, and the City retains all rights to that work. 6.11 Invoices Proposer(s) will submit invoices upon completion of work performed. As a basis for payment of invoices, temporary staff/consultants must provide Proposer(s) with a timesheat for each billing period, signed by their City of Santa Ana supervisor. This timesheet must show the project assignments during the billing period and hours worked for each project. All invoices submitted for payment must show the breakdown of hours actually worked for each individual according to their timesheets. The City will pay invoices within 30 days after approval by the City Agreement administrator. No purchase orders will be issued. 6.12 Labor and Wage Requirements The Proposer shall be fully responsible for ensuring: a) The payment of all salaries, wages, bonuses, Social Security, Workers' Compensation taxes, Federal and State Unemployment Insurance, and any and all taxes relating to the personnel furnished under this agreement. b) Withholding State and Federal Income taxes c) F.I.C,A, taxes d) Providing Workers' Compensation for its personnel e) Compliance with all other laws relating to employees and contract personnel, such as wage and hour laws, safety and health requirements, and collective bargaining laws. 6.13 Orders The City does not guarantee any specific number of hours or assignments will be made during the life of this agreement. City requirements for temporary services not specified in this proposal will be contracted on the open market in the customary manner. Proposer(s) will be required to provide some mutually acceptable means for the City to contact them during normal business hours of 8:00 a.m. to 5 p.m. Pacific Time, Monday through Friday, 6.14 Overtime and Holidays The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. RFP 16-140 November 2016 irl 25E-122 The following are City Holidays • New Year's Day • Martin Luther King Jr. Day • Presidents' Day • Memorial Day • Independence Day • Labor Day • Veterans Day • Thanksgiving Day (2 days) • Christmas Eve Christmas Day 7, SUPPLEMENTAL QUESTIONS Proposer must include: a. Short summary description of the organization b. Short summary description of the ownership o. Description of the major service offered by the Proposer's firm d. List of acceptable invoicing frequencies. (i.e„ weekly, bi-weekly, semi-monthly, monthly) e. The number of years that the Proposer has been in the business of providing temporary technology contract service personnel and/or consulting services of the kind sought by the City. (If company name or ownership has changed of the period cited, please note and explain.) f. Description of the overall qualifications of the Proposer, including its experience and its ability to provide temporary technology contract service personnel and/or consulting services g. Description of any unique qualifications and experience that distinguish the Proposer's ability to provide temporary technology staffing and/or consulting h. Confirmation of the Proposer's willingness and capability to agree to and to follow the terms and processes outlined in this RFP and any resulting agreement including all administrative and billing procedures of the City i. Description of any other information the Proposer feels is relevant in helping the City gauge the Proposer's business stability j. No more than three (3) samples of the style of resumes that your firm would provide to clients. (This wilt allow the City to assess the readability of the formats and the usefulness of contents of the resumes the City could expect from the Proposer. These resumes will not be used to rate potential candidates.) k. List of the types of technology specialties for which the Proposer provides temporary placements or consulting services. (For example, if you only provide consulting services for a specific product or skill -set, please specify.) I: List of any unique qualifications and/or experience that distinguish the Proposer's ability to provide temporary Contract Service Personnel or consulting services in the various technology RFP 16-140 November 2016 19 25E-123 fields/specialties. For example, a Proposer may have the capability to provide emergency placements with 24 hours, to conduct technical qualifying testing, to use highly -qualified technology screeners to evaluate and rate candidates'skills, to employ special techniques to track a placed contractor's performance, to provide on -call for specialized technology needs, etc. These are examples only and not mandatory services or qualifications. m, Description of Proposer's methods used to identify potential candidates n. Description of Proposer's methods used to screen candidates and to match their qualifications against the requirements of a City job assignment o. Description of Proposer's methods used to assess and confirm candidate's technology skills/knowledge, experience, work habits, interpersonal skills, etc. p. Description of Proposer's methods used to establish candidate availability with respect to the project schedule of the City assignment q. Description of the quality (as opposed to quantity) of the candidates within a job assignment (e.g. City seeks senior network engineer) that the Proposer can provide r; Explanation of any training opportunities made available by the Proposer for technology personnel engaged with the City s, Explanation of any effort the Proposer takes to ensure that the technology knowledge and skills of its staff engaged with the City are maintained and refreshed during long term engagements with the City I. Description of any programs and benefits provided by the Proposer to its Contract Service Personnel and Consultants, engaged with the City that ensure their retention for the period required by the City u. Confirmation that there are no penalties to the City, Contract Service Personnel or consultants if the individual was to become a City employee. If there is a minimum amount of contract time that would need to occur, specify that amount of time (e.g, After six months of placement, Contract Service Personnel may hired without any penalties, etc.). RPP I6-140 November 2016 20 25E-124 0.1G3m 25E-125 Certification - I certify that I have read, understand and agree to the terms and conditions of this Request for Proposals. I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests. I understand and agree that I am responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal. 1. APPLICATION/TECIiNOLOGY-SPECIFIC PRICING NOT APPLICABLE 2. GENERAL STAFFING PRICING • All resources provided by SoftMaster will be local, onsite resources, and the rate is inclusive of any travel expenses, • For General Staffing SoftMaster typically requires a 40 hour commitments, but we can be flexible and will not require a specific commitment for this contract. Estimated Rates These rates are just estimates based on current engagements. Actual rates will be quoted at the time of order placement per the process described in the contract. December 8. 2016 P 25E-126 Markup Percentages December 8, 2016 21 25E-127 SoPtMaster, Inc. Pbone:949-697.1546 LEGAL NAME OF COMPANY PHONE AND FAX NUMBERS 1142 S, Diamond Ear Blvd, Stiite 386, Diamond Bar, CA 91765 BUSINESSADDRESS James Bamett COO PRINTED NAME -OF AUTHORIZED AGENT 'CITLE [2/08/2016 jbamett@softmaster.nom SIGNATURE OE AUTHORIZED AGENT RATE 6-MAIL ADDRESS N/A FEPP DERAL ID NUMBER (IF ALICABLE) CONTRACTOR LICENSE NUMBER THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. 22 December 8, 2016 25E-128 Exhibit 4 AGREEMENT TO PROVIDE INFORMATION TECHNOLOGY PROFESSIONAL SERVICES ON AN ON -CALL BASIS THIS AGREEMENT is made and entered into this 7th day of February, 2017 by Stelarum Studios, Inc., a Florida corporation, ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. On November 15, 2016, the City issued Request for Proposal No. 16-140, by which it sought consultants to famish information technology ("IT") professional services on an on -call basis. B. Consultant submitted a responsive proposal that was among seven selected by the City, Consultant represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 16-140 and attached herein as Exhibit A. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES On an as -needed basis, and at the sole discretion of City, Consultant shall furnish IT professional consulting services as described in Exhibit A to this Agreement. Consultant's proposal is incorporated by reference as though fully set forth herein. When the need for a temporary technology service arises, the City may contact any or all of the Consultants selected for an agreement under RFP 16-140 through the Order Process outlined in Section 2 below. 2. ORDER PROCESS When the need for a temporary technology service arises, the City may contact any or all of the Consultants awarded an agreement pursuant to RFP No.. 16-140. City will provide the assignment details and necessary qualifications to the Consultant and a point -of -contact for the assignment. a. The City's point -of -contact is available to answer any questions Consultant(s) may have on the assignment, the qualifications, experienceiskill level needed, desired pay rate, etc. b. The Consultam(s) will conduct a search (if necessary), match and qualify process skills (including technology assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. C. The Consultant(s) will provide the City's point -of -contact with resumes of qualified potential candidates. d. The Consultant(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. e. From the candidates offered by the Consultant(s), the City may elect a telephone or in - person interview with one or more of the potential candidate(s). The City's point -of -contact will get in touch with the Consultant(s) to work out arrangements. 25E-129 f The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City, g. When the City has identified the candidate that it wished to engage and has notified the Consultant, the Consultant will conduct background checks, and confirm candidate availability; interest in the engagement and acceptance of the terms and conditions of the terms of engagement with the City. It. One the Consultant has completed the checks and confirmations, the Consultant will notify the City and final details will be worked out. i. The City Agreement manager will send a confirming electronic email message to the Consultant as final confirmation of the engagement.. j. After a candidate has been accepted but prior to the beginning the engagement, the Consultant will inform the candidate on pertinent Consultant business procedure (e.g. time reporting, requesting time off, personnel benefits; etc.) k, After an engagement starts, the Consultant will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 3. COMPENSATION a. Consultant is one of seven Consultants selected to provide IT professional services on an as -needed basis. Consultants have been selected pursuant to a competitive RFP process (RFP No. 16-140), The total funds for all IT professional services provided by all seven Consultants is a collective amount not to exceed three million dollars ($3,000,000) per year for a total collective amount not to exceed twelve million dollars ($12,000,000) if all of the extensions are utilized. Consultant understands and acknowledges the following: (1) City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. It is possible that City may not utilize Consultant's services at all; and (2) Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in the order process but not to exceed the parameters outlined in Consultant's Certification and Proposal Item Pricing' attached hereto as Exhibit B. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City: 4. TERM This Agreement shall commence on the date stated above and continue through, February 6, 2018, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for three (3) one (1) year periods upon a writing executed by the City Manager and the City Attorney, If the Agreement is extended, all terms and conditions, including pricing shall remain the same and apply during the extended terms. }-Exhibit C of Consultant's proposal in response to RIP No. 16-140. 25E2130 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to; physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"), Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insuned(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Workers' Compensation Insurance. In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for 25E3131 workers' compensation or to undertal<e self-insurance, Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. C. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall notbecanceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iv) Consultant shall supply City with a fully executed additional insured endorsement. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 8. HOLD HARMLESS/INDEMNIFICATION To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligence or willful misconduct of the Consultant or its, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is true by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Consultant's indemnification obligations in this section shall survive expiration of this Agreement. Notwithstanding the 1 25E-132 foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify, and hold harmless City, its officers, agents, representatives, and employees against any and all liability or losses, including costs and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright, alleged or contained in the work product or documents provided or used by Consultant under this Agreement, 10. RECORDS Consultant shall keep records and invoices in connection with the wort, to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. it. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the perfonnanee of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with the perforniance of services specified under this Agreement. 255-133 13, NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714- 647-6956 With courtesy copies to: Chief Technology Innovations Officer Information Technology Department City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 And City Attorney City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, CA 92702 Fax (714) 647-6956 To Consultant: Jahn Curtis, President Stelarum Studios, Inc. 9017 NW 18"'Place Gainesville, FL 32606 Fax A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 25E6134 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter therein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 16. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17, TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, City may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 18. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS Contractor shall perform all requirements under this contract in strict observance of and in compliance with all applicable laws, regulations, ordinances, codes, and any other legislative or statutory requirements. 25E-135 19. NONDISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 20. BACKGROUND INVESTIGATIONS Unless exempted by the City, Consultant will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department ("SAPD") will be required to pass an SAPD background investigation prior to beginning won(, with SAPD. Full name, address, phone number, birth date, Social Security number and driver's license number must be furnished to the City upon request. An application for SAPD background must be completed by each prospective contract service person who will be providing on -site services to SAPD. 21, OVERTIME AND HOLIDAYS The City will pay only straight time (i,e. no increase in effective hourly billing rate) for all hours worked under this Agreement. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate.. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. 22, JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that maybe brought or arise out of, in connection with or by reason of this Agreement. 23. PROFESSIONAL LICENSES Consultant shall, throughout the tern of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 25Eg136 24. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA Maria D. Huizar Gerardo Monet Clerk of the Council Acting City Manager APPROVED AS TO FORM: CONSULTANT: SONIA R. CARVALHO City Attorney Bye tt •r_E>1i1fL� Laura A. Rossini John Curtis Senior Assistant City Attorney President Stelarum Studios, Inc. RECOMMENDED FOR APPROVAL: Jack Ciulla Chief Technology innovations Officer Information Technology Department 258-137 EXHIBITA 25E-138 EXHIBIT A - SCOPE OF SERVICES CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES DESCRIPTION AND SCOPE OF WORK The City of Santa Ana is soliciting proposals from qualified Proposers who can provide technology contract service personnel and consulting services on an as needed basis for a one- year period, with possible extensions of three (3) additional one-year periods. This term is subject to final approval by the Santa Ana City Council. Services under any resulting agreement will be for the Information Technology Department (ITD). ITD will administer agreement(s) resulting from this RFP. It is anticipated that the services provided through these agreements would be used in five (5) distinct manners: • Provide staff for temporary situations that do not justify the addition of regular City staff. (junior- and senior -level) • Provide temporary contract service personnel with unique technology skills to act as a technical resource to project teams for projects that do not justify the addition of regular staff, • Provide additional resources for situations that exceed the capacity of existing City staff. • Provide project -based consulting and implementation support (fixed or hourly cost). • Provide managed services based on service. (i.e., server support per server, desktop support per PC, etc.) All five (5) situations require highly qualified, technology contract service personnel who perform exceptionally well in their specialties, Technology contract service personnel and consultants will work individually as technical resources or as members of project teams, and will be under the overall general direction of City technology management. In certain instances, sub -projects may be contracted out. 1. OVERVIEW OF EXISTING SYSTEMS a. Infrastructure • About 40 physical Wintel-based servers and 250 4- VMware virtualized servers supporting enterprise applications/services, local area networks and various department -specific applications • Multiple HP storage systems including Left Hand and 3PAR. SAN nodes and clusters utilize !SCSI and Fiber Channel interfaces. RFP 16-140 November 2016 m 25E-139 • Gigabit Ethernet fiber links through City Hall and connected annex • Multiple network segments supporting more than 24 City operating locations interconnected via a wide area network • Approximately 250 Aruba wireless access points throughout City Hall and most remote City facilities. Wireless network access is available for City staff and guest access. • Switched Ethernet backbone in City Hall connecting City Hall LANs and computer operating In the Central Computer Center • Mobile Device Management system utilized to manage and secure 334 personal and City issued smartphones and tablets • The City's telecommunications network serves 22 operating locations through an AT&T network of local, T-1, Fiber Optic and OPX lines with approximately 3,352 equipped voice ports, 40 voicemail ports, 2,104 telephone extensions and 1,773 telephone instruments. • The existing telecommunications infrastructure is comprised of 14 NEC telephone switches (NEAR 2400 IPX, NEAX 2000 IPX, NEAX 2000 IPS), key systems (NEAX INFOSET 408) and 32 VoIP telephones plus a CENTIGRAM 640 voice processing system with 40 ports and 120 hours of storage. • The City has adopted the ANSI/EIA/TIA and NEC standards, as well as BICSI design and installation methods for all materials, installation, testing, configuration and documentation of the City telecommunications Infrastructure. These guidelines are based upon widely used industry standards such as, but not limited to, EIA/TIA 568, 569, 570, 606A, 607, including all TSB's, and the NEC codes related to Telecommunications Infrastructures. b. Applications • Infor Lawson financial application • Highline FIR/Payrotl application • Laserfiche document management • ESRI GIS CherwelllTSM • IVOS Workers' Compensation • Tritech CAD and RMS • iNovah cashiering • Systems and Software's enQuesta CIS • Drupal CMS • Various .NET -based homegrown apptications • Various Microsoft Access -based applications c. Desktop/Mobile. • Approximately 2,000 Dell desktop and laptop computers • Approximately 300 Apple Whone, Apple iPad and Samsung Galaxy devices PFP 16-140 November 2016 12 25E-140 2. SERVICES BEING SOUGHT The City seeks Proposers to provide contract service personnel with specific technology skills to perform assignments of varying length. Multiple pre approved Proposers may be contacted to propose resources and a quote for a requested assignment/project. In response to requests from the Information Technology Department, the Proposer(s) shall: a. Research their roster of personnel and/or recruit for potential candidates. b. Screen available candidates in order to match technology skills and work experience with requirements of the City job assignments. c. Confirm candidate qualifications including technology skills, experience, work habits, interpersonal skills, quality of work performed, reference checks, etc. d. Confirm candidate availability for the City assignment. e. Provide the Information Services Division with resumes of screened qualified candidates (identifying skills, work experience and education) and their charge (i.e, bill) rates. f. Upon the City's conditional acceptance of a candidate, conduct background checks (See Section 6.1 for details). g. After a candidate has been accepted but prior to beginning the engagement, inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g. time reporting, requesting time off, personnel benefits, etc.) h. After an engagement starts, monitor their personnel/s' performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. There is no guarantee as to the number of times a Proposer will be used or the dollar amount that will be expended with them. 3. PROPOSER RESPONSIBILITIES a. Proposer(s) will be responsible for all payments and benefits for contract service personnel placed on assignments with the City, including payroll, taxes, other withholding, vacation, other benefits, etc. (See Section 6,13 for details). b. Proposer(s) will be responsible for the conduct of any temporary contract service personnel placed with the City. If, at the sole discretion of the City, a temporary contract service person is determined to be unsatisfactory for any reason, the Proposer will withdraw the individual upon notification by the City. The City will not be charged for the period of unsatisfactory service. c. Proposer(s) will provide training and education programs for their personnel on assignment with the City. This is intended to ensure that these personnel remain technically knowledgeable to perform their assignments for the City, Proposer(s) will provide programs that will promote the retention of their personnel on assignment with the City. RFP 16-140 November 2016 1P] 25E-141 4. DESCRIPTION OF TECHNOLOGY POSITIONS TO BE PROVIDED The skills and services will be needed in the technology categories of: • Application & Development Services • Telecommunications Services • User Support Services • Business / Application / Project Consulting Services • Technology Operations & Support Services Specific abilities required will vary depending on the operations and projects involved. Detailed identification of knowledge, skills, abilities, experience and education will be provided for each assignment with the City. Table 1, below, shows a sample of technology -related positions by category for which the City may seek Proposer(s) to provide contract service personnel. This list is not exhaustive or fixed. As the technology needs of the City change, the technology specialties sought will also change. This list does demonstrate the range and depth of technology fields and positions potentially sought by the City. Contract service personnel and consultants may be expected to perform other related duties not specifically detailed herein or in the City's pre -engagement description of the assignment (at the quoted rate) but that are generally within the scope of the job classification requirements for knowledge skills and abilities specified. The City does not require that each Proposer be able to provide candidates for all the range and depth of technology job positions covered by this RFP. Each Proposer will be asked in its proposal to identify the technology category or categories for which it can provide qualified candidates or consulting services to the City. RPP 16-140 November 2016 14 25E-142 Table 1 - Potential Technology Specialties by Category (cautlowListisnorcomprehensivel Applications & Development Services • Systems Architect and Engineer • Systems Analyst • Programmer/Developer (MS Windows Visual Studio and SQL for client/server environment) • Web Developer (.NET/PHP) • Database Administrator (MS SQL) • Document Imaging Application Specialist • Business Intelligence Specialist • Mobile App developer (iOS & android OS) Telecommunications Services • Telephone System Administrator • Telephone System Engineer • Voice System Engineer (Centigram) • Cabling Installer User Support Services • Help Deal<Specialist • IT Support Specialist (Desktop) • Mobility Technology Coordinator • IT Support Intern f FP 16-140 November 2016 Business / Application / Project Consulting Services • IT Business Analyst (with municipal government experience) • Project Lead (for deployment of purchased software application) • Project Lead (for software development project) • Technology Consultant for specialized application (See Section A above, e.g., Lawson, Highl-me, etc.) • System Evaluation & Selection Consultant Technology Operations & Support Services • Infrastructure Architecture / Planning Engineer • Network Engineer (Cisco) • Network Security Engineer (Cisco) • Network Specialist— LAN Administrator (Cisco) • MS Exchange Engineer • Anti -Virus & Anti-SPAM Services Administrator • Data Center Engineer (HP servers, Win OS, VMware, HP SAN) • Wireless infrastructure Engineer (Aruba) 15 25E-143 6. ORDER PROCESS When a need for temporary technology contract services or consulting arises, the City may contact any or all of the Proposer(s) (those Proposers selected and awarded an agreement) a. The City will provide the assignment details and necessary qualifications to the Proposer(s) and a point -of -contact for the assignment. b. The City's point -of -contact is available to answer any questions Proposer(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. c. The Proposer(s) will conduct a search (if necessary), match and qualify process skills (including technical assessment, personality assessment, reference checks, etc.) to Identify qualified potential candidates. d. The Proposer(s) will provide the City's point -of -contact with resumes of qualified potential candidates. e. The Proposer(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. I. From the candidates offered by Proposer(s), the City may elect to conduct a telephone or in -person interview with one or more of the potential candidate(s). The City's point -of -contact will get in touch with the Proposer(s) to work out the arrangements. g, The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. h.. When the City has identified a candidate that It wishes to engage and has notified the Proposer, the Proposer will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terms and conditions of an engagement with the City. I. Once the Proposer has completed the checks and confirmations, the Proposer will notify the City and final details will be worked out. j, The City agreement manager will send a confirming electronic mail message to the Proposer as final confirmation of the engagement. k: After a candidate has been accepted but prior to beginning the engagement, the Proposer will inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g, time reporting, requesting time off, personnel benefits, etc.) I. After an engagement starts, the Proposer will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 6. PERMS & CONDITIONS The following terms and conditions will be included in any subsequent agreement with the City. These terms and conditions are being repeated in this RFP due to their special impact in defining a contractual relationship between prospective Proposer(s) and the City, 6.1 Background Investigations Unless exempted by the City, Proposer(s) will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department (SAPD) will be required to pass a SAPID background investigation prior to beginning work with SAPID. Full name, address, phone number, birth date, Social Security number and driver's license number RFP 16-140 November 2016 16 25E-144 must be furnished to the City upon request. An application for SAPD background must be completed by each prospective contract service person who will be providing on•site services to SAPID. 6.2 Certificate of Insurance Proof of insurance is NOT required to be submitted with the proposal, but it will be required prior to the City's award of any Agreement. Proposers should carefully consider the City insurance requirements and the related documentation included in the Sample Agreement (See Appendix B) and in the Sample Insurance Forms (See Appendix G). Proposals should be based on full and complete compliance with all parts and directions relating to these insurance requirements. 6.3 City Responsibilities There is no guarantee as to the number of times an agency will be used or the dollar amount that will be expended with them. 6.4 Cancellation The agreement may be cancelled by either party with 30 days' written notice. 6.5 Contract Service Personnel & Consultants This Agreement shall not render the Contract Service Personnel and Consultants an employee, partner, agent of or joint venturer with the City for any purpose, Any Contract Service Personnel and Consultant is and will remain an independent contractor in (his or her) relationship to the City. The City shall not be responsible for withholding taxes with respect to the Service Personnel's and Consultant's compensation hereunder. The Contract Service Personnel and Consultant shall have no claim against the City hereunder or otherwise for vacation pay, sick leave, retirement benefits, Social Security, worker's compensation, health or disability benefits, unemployment insurance benefits or employee benefits of any kind. 6.6 Documents to Be Construed Together The Request for Proposals, the Proposal and all documents referred to in the complete specifications and the Agreement to be entered into between the Proposer and the City, and all modifications of said documents, shall be construed together as one document. 6.7 Errors and Omissions Proposer(s) shall not be allowed to take advantage of any errors in or omissions in the Request for Proposal. Full instructions will be given if such error or omission is discovered and called in a timely manner to the attention of the City. 6.8 Evidence of Financial Ability At the option of the City, Proposers may be required to furnish evidence of sufficient financial ability and responsibility to enable them to fulfill this Agreement. 6.9 Firm Commitment of Availability of Service Once a proposal is opened, a Proposer is otherwise expected to maintain an availability of service as set forth in its proposal for the stated prices for the full Agreement term after date of opening proposals. RFP 16-140 November 2016 17 25E-145 6.10 Intellectual Property Rights All work performed by temporary contract service personnel/consultants for the City becomes the sole property of the City of Santa Ana, and the City retains all rights to that work. 6.11 Invoices Proposer(s) will submit invoices upon completion of work performed. As a basis for payment of invoices, temporary staff/consultants must provide Proposer(s) with a timesheet for each billing period, signed by their City of Santa Ana supervisor, This timesheet must show the project assignments during the billing period and hours worked for each project. All invoices submitted for payment must show the breakdown of hours actually worked for each individual according to their timesheets. The City will pay invoices within 30 days after approval by the City Agreement administrator. No purchase orders will be issued. 6.12 Labor and Wage Requirements The Proposer shall be fully responsible for ensuring: a) The payment of all salaries, wages, bonuses, Social Security, Workers' Compensation taxes, Federal and State Unemployment Insurance, and any and all taxes relating to the personnel furnished under this agreement. b) Withholding State and Federal Income taxes c) F.I.C.A. taxes d) Providing Workers' Compensation for its personnel e) Compliance with all other laws relating to employees and contract personnel, such as wage and hour laws, safety and health requirements, and collective bargaining laws. 613 Orders The City does not guarantee any specific number of hours or assignments will be made during the life of this agreement. City requirements for temporary services not specified in this proposal will be contracted on the open market in the customary manner. Proposer(s) will be required to provide some mutually acceptable means for the City to contact them during normal business hours of 8:00 a.m. to 5 p.m. Pacific Time, Monday through Friday. 6.14 Overtime and Holidays The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. RFP 16-140 November 2016 18 25E-146 The following are City Holidays; • New Year's Day • Martin Luther King Jr. Day • Presidents' Day • Memorial Day • Independence Day • Labor Day • Veterans Day • Thanksgiving Day (2 days) • Christmas Eve • Christmas Day 7. SUPPLEMENTAL QUESTIONS Proposer must include: a. Short summary description of the organization b. Short summary description of the ownership c. Description of the major service offered by the Proposer's firm d. List of acceptable invoicing frequencies, (i.e., weekly, bi-weekly, semi-monthly, monthly) e. The number of years that the Proposer has been in the business of providing temporary technology contract service personnel and/or consulting services of the kind sought by the City. (If company name or ownership has changed of the period cited, please note and explain.) f. Description of the overall qualifications of the Proposer, including its experience and its ability to provide temporary technology contract service personnel and/or consulting services g. Description of any unique qualifications and experience that distinguish the Proposer's ability to provide temporary technology staffing and/or consulting h. Confirmation of the Proposer's willingness and capability to agree to and to follow the terms and processes outlined in this RFP and any resulting agreement including all administrative and billing procedures of the City i. Description of any other information the Proposer feels is relevant in helping the City gauge the Proposer's business stability j. No more than three (3) samples of the style of resumes that your firm would provide to clients. (This will allow the City to assess the readability of the formats and the usefulness of contents of the resumes the City could expect from the Proposer. These resumes will not be used to rate potential candidates.) k. List of the types of technology specialties for which the Proposer provides temporary placements or consulting services. (For example, if you only provide consulting services for a specific product or skill -set, please specify.) I. List of any unique qualifications and/or experience that distinguish the Proposer's ability to provide temporary Contract Service Personnel or consulting services in the various technology RFP 16-140 November 2016 19 25E-147 fields/specialties. For example, a Proposer may have the capability to provide emergency placements with 24 hours, to conduct technical qualifying testing, to use highly -qualified technology screeners to evaluate and rate candidates'skills, to employ special techniques to track a placed contractor's performance, to provide on -call for specialized technology needs, etc. These are examples only and not mandatory services or qualifications. m. Description of Proposer's methods used to identify potential candidates n. Description of Proposer's methods used to screen candidates and to match their qualifications against the requirements of a City job assignment o. Description of Proposer's methods used to assess and confirm candidate's technology skills/knowledge, experience, work habits, interpersonal skills, etc. p. Description of Proposer's methods used to establish candidate availability with respect to the project schedule of the City assignment q. Description of the quality (as opposed to quantity) of the candidates within a job assignment (e.g. City seeks senior network engineer) that the Proposer can provide r. Explanation of any training opportunities made available by the Proposer for technology personnel engaged with the City s. Explanation of any effort the Proposer takes to ensure that the technology knowledge and skills of its staff engaged with the City are maintained and refreshed during long term engagements with the City t. Description of any programs and benefits provided by the Proposer to its Contract Service Personnel and Consultants engaged with the City that ensure their retention for the period required by the City u. Confirmation that there are no penalties to the City, Contract Service Personnel or consultants if the individual was to become a City employee. If there is a minimum amount of contract time that would need to occur, specify that amount of time (e.g, After six months of placement, Contract Service Personnel may be hired without any penalties, etc.). RFP 16-140 November 2016 20 25E-148 EXHIBIT B 25E-149 EXHIBIT C - PROPOSERS CERTIFICATION and PROPOSAL ITEM PRICING CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES Certification - I certify that I have read; understand and agree to the terms and conditions of this Request for Proposals. I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests. I understand and agree that I am responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal. 1. APPLICATION/TECHNOLOGY-SPECIFIC PRICING Complete this table if your organization consists of permanent employees who specialize in a specific application or technology and have fixed standard pricing. For example, you may provide a Lawson Technical resource or a Highl.ine functional resource. These should be actual committed rates that would good for the entire term of the agreement, including the optional renewals. Onsite rates should be fully inclusive of all travel costs. Add as many rows as necessary. Applicatlon/Technology Resource;Type HourlyRate ,: Offsite no travel °: - Hourly"Rate " `= Onsite; inc:"travel r Minimum -Hours` lawson software technical consultant $150 per hour n/a 2. GENERAL STAFFING PRICING Complete these tables if your organization hires temporary employees or subcontractors to fill assignments (staffing firm model) for each of the Technology Specialties listed in Table 1, Exhibit A, Section 4. For example, you may provide a System Analyst or a Network Engineer. Estimated Rates These rates are just estimates based on current engagements that you have. Actual rates will be quoted at the time of order placement per the process described in Exhibit A, Section 5. Add as many rows as necessary. Technology Specialty= Estimated Hourly Rate offsite, na travel . - 'Est! ate- Hourly Rate` Onsike, incaravel Minimum` Hours ms s I 150.00 n/a Q ms windows a min 150.OQ n a Markup Percentages This reflects the markup percentages used by your firm to when staffing Contract Service Personnel with the City. The first row reflects the markup if the Proposer(s) are asked to find a resource. Since this scenario requires additional marketing costs, it is expected the markup will be higher. The second row should reflect the markup if a resource has already been identified and no marketing is required. Furthermore, identify the different markup percentages between a W2 employee and Corp -to -Corp resource. Finally, estimate approximately how many hours would be necessary before the markup (and corresponding rate) would drop to that of the Identified resource markup percentage. These percentages should remain fixed throughout the RFP 16-140 December 2016 17 25E-150 entire term of the agreement, including optional renewals. ,Tdchnology,Specialty W2 Employee Corp to-Gorp Est. Hours Until Rate Drops Markup °f ` ` Markin "lo ` to identified Resource , Markup %* Proposer Found Resource n/a n/a Identified Resource n/a n/a NIA "To be determined at acceptance or candidate Stellarum Studios 352-505-6432 LEGAL NAME OF COMPANY PHONE AND FAX NUMBERS 9017 NW 18th Place , Gainesville FL 32606 BUSINESS ADDRESS John Curtis President PRINTED NAME OF AUTHORIZED AGENT TITLE 12/8/2016 trebortoe@gmall.com STE E-MAILADDRESS n/a FEDERAL ID NUMBER (IF APPLICABLE) CONTRACTOR LICENSE NUMBER (IF APPLICABLE) THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. RFP 16-140 December 2016 0 25E-151 25E-152 Exhibit '7 AGREEMENT TO PROVIDE INFORMATION TECHNOLOGY PROFESSIONAL SERVICES ON AN ON-CALL BASIS THIS AGREEMENT is made and entered into this 7th day of February, 2017 by Total Network Solutions, a California corporation. ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. On November 15, 2016, the City issued Request for Proposal No. 16-140, by which it sought consultants to furnish information technology ("IT") professional services on an on-call basis. B. Consultant submitted a responsive proposal that was among seven selected by the City. Consultant represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 16-140 and attached herein as Exhibit A. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: L SCOPE OF SERVICES On an as -needed basis, and at the sole discretion of City, Consultant shall furnish IT professional consulting services as described in Exhibit A to this Agreement. Consultant's proposal is incorporated by reference as though fully set forth herein. When the need for a temporary technology service arises, the City may contact any or all of the Consultants selected for an agreement under RFP 16-140 through the Order Process outlined in Section 2 below. 2. ORDER PROCESS When the need for a temporary technology service arises, the City may contact any or all of the Consultants awarded an agreement pursuant to RFP No, 16-140. City will provide the assignment details and necessary qualifications to the Consultant and a point -of -contact for the assignment. a. The City's point -of -contact is available to answer any questions Consultant(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. b. The Consultant(s) will conduct a search (if necessary), match and qualify process skills (including technology assessment, personality assessment, reference checks, etc.) to identify qualified potential candidates. C, The Consultant(s) will provide the City's point -of -contact with resurnes of qualified potential candidates. d. The Consultant(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. e. From the candidates offered by the Consultant(s), the City may elect a telephone or in- person interview with one or more of the potential candidate(s). The City's point -of -contact will get in touch with the Consultant(s) to work out arrangements. 25E-153 f The City will select the candidate whose skills and experience best matches the City's heeds and who has the lowest total cost to the City. g. When the City has identified the candidate that it wished to engage and has notified the Consultant, the Consultant will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terins and conditions of the terms of engagement with the City. h. One the Consultant has completed the checks and confirmations, the Consultant will notify the City and final details will be worked out, i. The City Agreement manager will send a confirming electronic email message to the Consultant as final confirmation of the engagement. j. After a candidate has been accepted but prior to the beginning the engagement, the Consultant will inform the candidate on pertinent Consultant business procedure (e.g. time reporting, requesting time off, personnel benefits, etc.) k. After an engagement starts, the Consultant will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 3. COMPENSATION a, Consultant is one of seven Consultants selected to provide IT professional services on an as -needed basis. Consultants have been selected pursuant to a competitive RPP process (RPP No. 16-140). The total funds for all IT professional services provided by all seven Consultants is a collective amount not to exceed three million dollars ($3,000,000) per year for a total collective amount not to exceed twelve million dollars ($12,000,000) if all of the extensions are utilized. Consultant understands and acknowledges the following: (1) City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. It is possible that City may not utilize Consultant's services at all; and (2) Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in the order process but not to exceed the parameters outlined in Consultant's Certification and Proposal Item Pricing' attached hereto as Exhibit B. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on the date stated above and continue through, February 6, 2018, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for three (3) one (1) year periods upon a writing executed by the City Manager and the City Attorney. If the Agreement is extended, all terms and conditions, including pricing shall remain the same and apply during the extended terms. ;-Exhibit C of Consultant's proposal in response to RPP No. 16-140. 25E�154 S. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in wbich Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a marmer consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to emploYees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Workers' Compensation Insurance, In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for 25E-155 workers' compensation or to undertake self-insurance, Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined 'single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iv) Consultant shall supply City with a fully executed additional insured endorsement. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force andpaid for, the City shall have the right, at the City's election, to terminate this Agreement, Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. S. HOLD HARMLESS/INDEMNIFICATION To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligence or willful misconduct of the Consultant or its, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury; damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terns of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Consultant's indemnification obligations in this section shall survive expiration of this Agreement. Notwithstanding the 25E'-1 56 foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify, and hold harmless City, its officers, agents, representatives, and employees against any and all liability or losses, including costs and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright, alleged or contained in the work product or documents provided or used by Consultant under this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. it. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant withoutt reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with the performance of services specified under this Agreement. 25E-157 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714- 647-6956 With courtesy copies to: Chief Technology Innovations Officer Information Technology Department City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 M City Attorney City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, CA 92702 Fax (714) 647-6956 To Consultant: Total Network Solutions 5150 East Pacific Coast Highway, Suite 530 Long Beach, CA 90804 Fax (562) 494-8262 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 25E6158 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter therein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 16. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, City may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 18. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS Contractor shall perform all requirements under this contract in strict observance of and in compliance with all applicable laws, regulations, ordinances, codes, and any other legislative or statutory requirements. 25E-159 19. NONDISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that itis an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 20. BACIfGROUND INVESTIGATIONS Unless exempted by the City, Consultant will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department ("SAPD") will be required to pass an SAPD background investigation prior to beginning work with SAPD. Full name, address, phone number, birth date; Social Security number and driver's license number must be furnished to the City upon request. An application for SAPD background must be completed by each prospective contract service person who will be providing on-site services to SAPD. 21. OVERTIME AND HOLIDAYS The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked under this Agreement. Overtime will be considered as any time in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. 22. JURISDICTION VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties fiirther agree that Orange County, California, shall be the venue for any action or proceeding that maybe brought or arise out of, in connection with or by reason of this Agreement. 23. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 25EA 60 24. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terns of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. A'T'TEST: Maria D. Huizar Clerk ofthe Council SONIA R. CARVALHO City Attorney Laura �A. Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: Jack Ciulla Chief Technology Innovations Officer Information Technology Department CITY OF SANTA ANA Gerardo Monet Acting City Manager CONSULTANT: James Bunnell President Total Network Solutions 25E-1 61 EXHIBITA 25E-162 EXHIBIT A - SCOPE OF SERVICES CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES DESCRIPTION AND SCOPE OF WORK The City of Santa Ana is soliciting proposals from qualified Proposers who can provide technology contract service personnel and consulting services on an as needed basis for a one- year period, with possible extensions of three (3) additional one-year periods. This term is subject to final approval by the Santa Ana City Council. Services under any resulting agreement will be for the Information Technology Department (ITD). ITD will administer agreement(s) resulting from this RFP. It is anticipated that the services provided through these agreements would be used in five (5) distinct manners: • Provide staff for temporary situations that do not justify the addition of regular City staff. (junior- and senior -level) • Provide temporary contract service personnel with unique technology skills to act as a technical resource to project teams for projects that do not justify the addition of regular staff. • Provide additional resources for situations that exceed the capacity of existing City staff. • Provide project -based consulting and implementation support (fixed or hourly cost). + Provide managed services based on service. (i.e., server support per server, desktop support per PC, etc,) All five (5) situations require highly qualified, technology contract service personnel who perform exceptionally well in their specialties. Technology contract service personnel and consultants will work individually as technical resources or as members of project teams, and will be under the overall general direction of City technology management. In certain instances, sub -projects may be contracted out. 1. OVERVIEW OF EXISTING SYSTEMS a. Infrastructure • About 40 physical Wintel-based servers and 250 + VMware virtualized servers supporting enterprise applications/services, local area networks and various department -specific applications + Multiple HP storage systems including Left Hand and SPAR, SAN nodes and clusters utilize !SCSI and Fiber Channel interfaces. RFP 16-140 November 2016 25E-163 • Gigabit Ethernet fiber links through City Hall and connected annex • Multiple network segments supporting more than 24 City operating locations interconnected via a wide area network • Approximately 250 Aruba wireless access points throughout City Hall and most remote City facilities. Wireless network access is available for City staff and guest access. • Switched Ethernet backbone in City Hall connecting City Hall LANs and computer operating in the Central Computer Center • Mobile Device Management system utilized to manage and secure 334 personal and City issued smartphones and tablets • The City's telecommunications network serves 22 operating locations through an AT&T network of local, T-1, Fiber Optic and OPX lines with approximately 3,352 equipped voice ports, 40 voicemail ports, 2,104 telephone extensions and 1,773 telephone instruments. • The existing telecommunications infrastructure is comprised of 14 NEC telephone switches (NEAR 2400 IPX, NEAX 2000 IPX, NEAX 2000 IPS), key systems (NEAX INFOSET 408) and 32 UP telephones plus a CENTIGRAM 640 voice processing system with 40 ports and 120 hours of storage. • The City has adopted the ANSI/EIA/TIA and NEC standards, as well as BICSI design and installation methods for all materials, installation, testing, configuration and documentation of the City telecommunications infrastructure. These guidelines are based upon widely used industry standards such as, but not limited to, EIA/TIA 568, 569, 570, 606A, 607, including all TSB's, and the NEC codes related to Telecommunications Infrastructures. b. Applications • Infoc Lawson financial application • Highline HR/Payrotl application •- Lascrfichedocumentmanagement. • ESRI GIS • CherwellITS1VI • IVOS Workers' Compensation • Tritech CAD and RMS • iNovah cashiering • Systems and Software's enQuesta CIS • Drupal CMS • Various ,NET -based homegrown applications • Various Microsoft Access -based applications c. Desktop/Mobile. • Approximately 2,000 Dell desktop and laptop computers • Approximately 300 Apple iPhone, Apple iPad and Samsung Galaxy devices RFP 16-140 November 2016 25E-164 1E 2. SERVICES BEING SOUGHT The City seeks Proposers to provide contract service personnel with specific technology skills to perform assignments of varying length. Multiple pre -approved Proposers may be contacted to propose resources and a quote for a requested assignment/project. In response to requests from the Information Technology Department, the Proposer(s) shall: a. Research their roster of personnel and/or recruit for potential candidates. b. Screen available candidates in order to match technology skills and work experience with requirements of the City job assignments. c. Confirm candidate qualifications including technology skills, experience, work habits, interpersonal skills, quality of work performed, reference checks, etc. d. Confirm candidate availability for the City assignment. e. Provide the Information Services Division with resumes of screened qualified candidates (identifying skills, work experience and education) and their charge (i.e. bill) rates. f. Upon the City's conditional acceptance of a candidate, conduct background checks (See Section 6.1 for details). g. After a candidate has been accepted but prior to beginning the engagement, inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g, time reporting, requesting time off, personnel benefits, etc.) h. After an engagement starts, monitor their personnel/s' performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. There is no guarantee as to the number of times a Proposer will be used or the dollar amount that will be expended with them. 3. PROPOSER RESPONSIBILITIES a. Proposer(s) will be responsible for all payments and benefits for contract service personnel placed on assignments with the City, including payroll, taxes, other withholding, vacation, other benefits, etc. (See Section 6.13 for details). b. Proposer(s) will be responsible for the conduct of any temporary contract service personnel placed with the City. If, at the sole discretion of the City, a temporary contract service person is determined to be unsatisfactory for any reason, the Proposer will withdraw the individual upon notification by the City. The City will not be charged for the period of unsatisfactory service. c. Proposer(s) will provide training and education programs for their personnel on assignment with the City. This is intended to ensure that these personnel remain technically knowledgeable to perform their assignments for the City. Proposer(s) will provide programs that will promote the retention of their personnel on assignment with the City. RFP 16-140 November 2016 25E-165 iE 4. DESCRIPTION OF TECHNOLOGY POSITIONS TO BE PROVIDED The skills and services will be needed in the technology categories of: • Application & Development Services • Telecommunications Services • User Support Services • Business / Application / Project Consulting Services • Technology Operations & Support Services Specific abilities required will vary depending on the operations and projects involved. Detailed identification of knowledge, skills, abilities, experience and education will be provided for each assignment with the City. Table 1, below, shows a sample of technology -related positions by category for which the City may seek Proposer(s) to provide contract service personnel. This list isnot exhaustive or fired. As the technology needs of the City change, the technology specialties sought will also change. This list does demonstrate the range and depth of technology fields and positions potentially sought by the City. Contract service personnel and consultants may be expected to perform other related duties not specifically detailed herein or in the City's pre -engagement description of the assignment (at the quoted rate) but that are generally within the scope of the job classification requirements for knowledge skills and abilities specified. The City does not require that each Proposer be able to provide candidates for all the range and depth of technology job positions covered by this RFP. Each Proposer will be asked in its proposal to identify the technology category or categories for which it can provide qualified candidates or consulting services to the City. RFP 16-140 November 2016 25E-166 14 Table 1 -Potential Technology Specialties by Category (caution: List is notcompraheas/ve) Applications & Development Services • Systems Architect and Engineer • Systems Analyst • Programmer/Developer (MS Windows Visual Studio and SQL for client/server environment) • Web Developer (.NET/PHP) • Database Administrator (MS SOL) • Document Imaging Application Specialist • Business Intelligence Specialist • Mobile App developer (10S & android OS) Telecommunications Services • Telephone System Administrator • Telephone System Engineer • Voice System Engineer (Centigram) • Cabling Installer User Support Services • Help Desk Specialist • IT Support Specialist (Desktop) • Mobility Technology Coordinator • IT Support Intern RFP 16-140 November2016 Business / Application / Project Consulting Services • IT Business Analyst (with municipal government experience) • Project Lead (for deployment of purchased software application) • Project Lead (for software development project) • Technology Consultant for specialized application (See Section A above, e.g., Lawson, HighLine, etc.) • System Evaluation & Selection Consultant Technology Operations & Support Services • Infrastructure Architecture/ Planning Engineer • Network Engineer (Cisco) • Network Security Engineer (Cisco) • Network Specialist — LAN Administrator (Cisco) • MS Exchange Engineer • Anti -Virus & Anti -SPAM Services Administrator • Data Center Engineer (HP servers, Win OS, VMware, HP SAN) • Wireless infrastructure Engineer (Aruba) 25E-167 15 When a need for temporary technology contract services or consulting arises, the City may contact any or all of the Proposer(s) (those Proposers selected and awarded an agreement) a. The City will provide the assignment details and necessary qualifications to the Proposer(s) and a point -of -contact for the assignment. b. The City's point -of -contact is available to answer any questions Proposer(s) may have on the assignment, the qualifications, experience/skill level needed, desired pay rate, etc. c. The Proposer(s) will conduct a search (if necessary), match and qualify process skills (including technical assessment, personality assessment, reference checks, etc.) to Identify qualified potential candidates, d. The Proposer(s) will provide the City's point -of -contact with resumes of qualified potential candidates. e. The Proposer(s) will provide the City's agreement manager with the proposed bill rate for each potential candidate. f, From the candidates offered by Proposer(s), the City may elect to conduct a telephone or in-person interview with one or more of the potential candidate(s), The City's point-of-contactwill get in touch with the Proposer(s) to work out the arrangements. g. The City will select the candidate whose skills and experience best matches the City's needs and who has the lowest total cost to the City. h. When the City has identified a candidate that it wishes to engage and has notified the Proposer, the Proposer will conduct background checks, and confirm candidate availability, interest in the engagement and acceptance of the terms and conditions of an engagement with the City. i. Once the Proposer has completed the checks and confirmations, the Proposer will notify the City and final details will be worked out. j. The City agreement manager will send a confirming electronic mall message to the Proposer as final confirmation of the engagement. k. After a candidate has been accepted but prior to beginning the engagement, the Proposer will inform the candidate on the standard of conduct required of those working with the City and brief the candidate on pertinent Proposer business procedures (e.g, time reporting, requesting time off, personnel benefits, etc.) 1. After an engagement starts, the Proposer will monitor their personnel's performance on a periodic basis to ensure their continuing fit with the City and the City's satisfaction. 6. TERMS & CONDITIONS The following terms and conditions will be included in any subsequent agreement with the City. These terms and conditions are being repeated in this RFP due to their special impact in defining a contractual relationship between prospective Proposer(s) and the City. 6.1 Background Investigations Unless exempted by the City, Proposer(s) will conduct a background check on each candidate (after the candidate's conditional acceptance by the City and prior to the start of any engagement with the City). Contract service personnel and consultants on assignment with or in support of the Santa Ana Police Department (SAPD) will be required to pass a SAPID background investigation prior to beginning work with SAPID. Full name, address, phone number, birth date, Social Security number and driver's license number RFP 16-140 November 2016 25E-168 16 must be furnished to the City upon request. An application for SAPID background must be completed by each prospective contract service person who will be providing on-site services to SAPID. 6.2 Certificate of Insurance Proof of Insurance is NOT required to be submitted with the proposal, but it will be required prior to the City's award of any Agreement. Proposers should carefully consider the City insurance requirements and the related documentation included in the Sample Agreement (See Appendix B) and in the Sample Insurance Forms (See. Appendix G). Proposals should be based on full and complete compliance with all parts and directions relating to these insurance requirements. 6.3 City Responsibilities There is no guarantee as to the number of times an agency will be used or the dollar amount that will be expended with them. 6.4 Cancellation The agreement may be cancelled by either party with 30 days' written notice. 6.5 Contract Service Personnel & Consultants This Agreement shall not render the Contract Service Personnel and Consultants an employee, partner, agent of or joint venturer with the City for any purpose. Any Contract Service Personnel and Consultant is and will remain an independent contractor in (his or her) relationship to the City. The City shall not be responsible for withholding taxes with respect to the Service Personnel's and Consultant's compensation hereunder. The Contract Service Personnel and Consultant shall have no claim against the City hereunder or otherwise for vacation pay, sick leave, retirement benefits, Social Security, worker's compensation, health or disability benefits, unemployment insurance benefits or employee benefits of any kind. 6,6 Documents to Be Construed Together The Request for Proposals, the Proposal and all documents referred to in the complete specifications and the Agreement to be entered into between the Proposer and the City, and all modifications of said documents, shall be construed together as one document. 6.7 Errors and Omissions Proposer(s) shall not be allowed to take advantage of any errors in or omissions in the Request for Proposal. Full instructions will be given if such error or omission is discovered and called in a timely manner to the attention of the City. 6.8 Evidence of Financial Ability At the option of the City, Proposers may be required to furnish evidence of sufficient financial ability and responsibility to enable them to fulfill this Agreement. 6.9 Firm Commitment of Availability of Service Once a proposal is opened, a Proposer is otherwise expected to maintain an availability of service as set forth in its proposal for the stated prices for the full Agreement term after date of opening proposals. RFP 16-140 November 2016 25E-169 IN 6.10 Intellectual Property Rights All work performed by temporary contract service personnel/consultants for the City becomes the sole property of the City of Santa Ana, and the City retains all rights to that work. 6.11 invoices Proposer(s) will submit invoices upon completion of work performed. As a basis for payment of invoices, temporary staff/consultants must provide Proposer(s) with a timesheet for each billing period, signed by their City of Santa Ana supervisor. This timesheet must show the project assignments during the billing period and hours worked for each project. All invoices submitted for payment must show the breakdown of hours actually worked for each individual according to their timesheets. The City will pay invoices within 30 days after approval by the City Agreement administrator. No purchase orders will be issued. 6.12 Labor and Wage Requirements The Proposer shad be fully responsible for ensuring: a) The payment of all salaries, wages, bonuses, Social Security, Workers' Compensation taxes, Federal and State Unemployment Insurance, and any and all taxes relating to the personnel furnished under this agreement. b) Withholding State and Federal Income taxes c) F.I.C.A, taxes d) Providing Workers' Compensation for its personnel e) Compliance with all other laws relating to employees and contract personnel, such as wage and hour laws, safety and health requirements, and collective bargaining laws. 6.13 Orders The City does not guarantee any specific number of hours or assignments will be made during the life of this agreement. City requirements for temporary services not specified in this proposal will be contracted on the open market in the customary manner. Proposer(s) will be required to provide some mutually acceptable means for the City to contact them during normal business hours of 8:00 a.m. to 5 p.m. Pacific Time, Monday through Friday. 6.14 Overtime and Holidays The City will pay only straight time (i.e. no increase in effective hourly billing rate) for all hours worked. Overtime will be considered as anytime in excess of the City's scheduled work week. The City will pay only for hours in excess of a normal schedule when authorized in advance by the City's Information Technology Director or a designated manager and then only at a straight time rate. The City does not provide compensation for temporary technology contract service personnel or technology consultants for holidays unless they are required to work on a City holiday and their work time has been prior approved by the City's Information Technology Director or a designated manager and then only at a straight time rate. RFP 16-140 November 2016 25E-170 is The following are City Holidays: • New Year's Day • Martin Luther King Jr. Day • Presidents' Day • Memorial Day Independence Day • Labor Day Veterans Day • Thanksgiving Day (2 days) • Christmas Eve • Christmas Day 7. SUPPLEMENTAL QUESTIONS Proposer must Include: a. Short summary description of the organization b. Short summary description of the ownership c. Description of the major service offered by the Proposer's firm d, List of acceptable invoicing frequencies. (i.e., weekly, bi-weekly, semi-monthly, monthly) e. The number of years that the Proposer has been in the business of providing temporary technology contract service personnel and/or consulting services of the kind sought by the City. (If company name or ownership has changed of the period cited, please note and explain.) I. Description of the overall qualifications of the Proposer, including its experience and its ability to provide temporary technology contract service personnel and/or consulting services g. Description of any unique qualifications and experience that distinguish the Proposer's ability to provide temporary technology staffing and/or consulting h. Confirmation of the Proposer's willingness and capability to agree to and to follow the terms and processes outlined in this RFP and any resulting agreement including all administrative and billing procedures of the City i. Description of any other information the Proposer feels is relevant in helping the City gauge the Proposer's business stability j. No more than three (3) samples of the style of resumes that your firm would provide to clients. (This will allow the City to assess the readability of the formats and the usefulness of contents of the resumes the City could expert from the Proposer. These resumes will not be used to rate potential candidates.) k. List of the types of technology specialties for which the Proposer provides temporary placements or consulting services. (For example, if you only provide consulting services for a specific product or skill -set, please specify.) I. List of any unique qualifications and/or experience that distinguish the Proposer's ability to provide temporary Contract Service Personnel or consulting services in the various technology RFP 16-140 November 2016 19 25E-171 fields/specialties. For example, a Proposer may have the capability to provide emergency placements with 24 hours, to conduct technical qualifying testing, to use highly -qualified technology screeners to evaluate and rate candidates'skills, to employ special techniques to track a placed contractor's performance, to provide on-call for specialized technology needs, etc. These are examples only and not mandatory services or qualifications. m. Description of Proposer's methods used to identify potential candidates n. Description of Proposer's methods used to screen candidates and to match their qualifications against the requirements of a City job assignment o. Description of Proposer's methods used to assess and confirm candidate's technology skills/knowledge, experience, work habits, interpersonal skills, etc. p. Description of Proposer's methods used to establish candidate availability with respect to the project schedule of the City assignment q. Description of the quality (as opposed to quantity) of the candidates within a job assignment (e.g. City seeks senior network engineer) that the Proposer can provide r. Explanation of any training opportunities made available by the Proposer for technology personnel engaged with the City s. Explanation of any effort the Proposer takes to ensure that the technology knowledge and skills of its staff engaged with the City are maintained and refreshed during long term engagements with the City L Description of any programs and benefits provided by the Proposer to its Contract Service Personnel and Consultants engaged with the City that ensure their retention for the period required by the City u. Confirmation that there are no penalties to the City, Contract Service Personnel or consultants if the individual was to become a City employee. If there is a minimum amount of contract time that would need to occur, specify that amount of time (e.g, After six months of placement, Contract Service Personnel may be hired without any penalties, etc.). RFP 16-140 November 2016 25E-172 20 EXHIBIT B 25E-173 NETWORKTOTAL YOUR IT SOL.UTMNS PRQV10i T k. Retention We pride ourselves on our ability to attract and retain quality candidates. We use lnsperity as our HR and benefits provider so we are able to leverage Fortune 500 benefits to our small business staff. In addition to these types of benefits, we enjoy maintaining a family business type personal feel within our corporate culture. We go out of our way to provide a positive working environment that respects personal time, work life balance and encourages a team like approach to supporting our clients. We also like to use a referral based system of candidate recruitment utilizing our existing staff and clients. This enabled us to identify strong candidates. Exhibits EXHIBIT C - PROPOSERS CERTIFICATION and PROPOSAL ITEM PRICING CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES Certification - I certify that 1 have read, understand and agree to the terms and conditions of this Request for Proposals. I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests. I understand and agree that I am responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal. 1. APPLICATION/TECHNOLOGY-SPECIFIC PRICING . `Aplic'ationCi ec7tnoIogy,t.� � � •.a RasourceType -� i Hourly Rata (Offsrti notravel) Hourly Rate jcniirly �(Onsne rnc"travel) 34t Y Mtmmum.. Hous-„ User Support Services Help Desk Specialist $50 $65 40 User Support Services Desktop Support Specialist $55 $65 40 User Support Services IT Support Intern $30 $40 40 Technology Operations Infrastructure Architecture $150 $175 20 Technology Operations Network Engineer (Cisco) $135 $160 40 Technology Operations Network Security Engineer $165 $195 20 Technology Operations Network Specialist -LAN $150 $175 20 Technology Operations MS Exchange Engineer $135 $150 16 Technology Operations Anti-Virus/Spam Services $130 $145 16 Technology Operations Data Center Engineer $1.40 $160 20 Technology Operations Wireless Infrastructure Eng. $120 $145 16 PAGE 1 11 City of Santa Ana I Information Technology As -Needed Professional Services Proposal 25E-174 TOTAL NETWORK YOUR IT SOLUTIONS PROVIDER SOLUTIONS Complete this table if your organization consists of permanent employees who specialize in a specific application or technology and have Fixed standard pricing. For example, you may provide a Lawson Technical resource or a HighLine functional resource. These should be actual committed rates that would good for the entire term of the agreement, including the optional renewals. Onsite rates should be fully inclusive of all travel costs. Add as many rows as necessary. 2, GENERAL STAFFING PRICING Complete these tables ifyour organization hires temporary employees or subcontractors to fill assignments (staffing firm model) for each of the Technology Specialties listed in Table t, Exhibit A, Section 4. For example, you may provide a System Analyst or a Network Engineer. Estimated Rates These rates are just estimates based on current engagements that you have. Actual rates will be quoted at the time of order placement per the process described in Exhibit A, Section 5. Add as many rows as necessary. 'r Hue 'NiiW'C'3^�$`nuk"�ry Ubd�Ve+Y_`u4iS Technology Specialty rvas-- ate H X'6kv.A it4 e m m=AM Estimated Hourly Rate (Offsite, no travel) , : al WACi d lc iia Y.. Estimated Hourly Rate - (Onsite; inc,, travel) , e .n... n Bev n in un Hours Markup "/o Markup % Identified Resource Markup % Proposer Found Resource 40 30 600 Identified Resource 30 20 Markup Percentages This reflects the markup percentages used by your firm to when staffing Contract Service Personnel with the City. The first row reflects the markup if the Proposer(s) are asked to find a resource. Since this scenario requires additional marketing costs, it is expected the markup will be higher. The second row should reflect the markup if a resource has already been identified and no marketing is required. Furthermore, identify the different markup percentages between a W2 employee and Corp -to -Corp resource. Finally, estimate approximately how many hours would be necessary before the markup (and corresponding rate) would drop to that of the Identified resource markup percentage. These percentages should remain fixed throughout the entire term of the agreement, including optional renewals. �.. Technology Specialty . W2 Employee Corp -to -Corp Est. Hours Until Rate Drops to Markup "/o Markup % Identified Resource Markup % Proposer Found Resource 40 30 600 Identified Resource 30 20 * To be determined at acceptance of canaraace PAGE 1 12 City of Santa Ana I Information Technology As -Needed Professional Services Proposal 25E-175 TOTAL NETW13RK SOLUTIONS Bunnell Enterprises LEGAL NAME OF COMPANY 5150 E Pacific Coast Hwy Suite 530 Long Beach CA 90804 BUSINESS ADDRESS Yc)uk IT SOLUTRZTNIS PROVIDER (562) 472-0876 Phone/ (562) 494-8262 PHONE AND FAX Masy Bunnell COO PRINTED NAME OF AUTHORIZED AGENT TITLE til y BKw1� 12/08/2016 masy n totalnetsot,com SIGNATURE OF AUTHORIZED AGENT DATE E-MAIL ADDRESS FEDERAL ID NUMBER (IF APPLICABLE) CONTRACTbR LICENSENUMBER(IF [CABLE) TH[S FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. EXHIBIT D -REFERENCES CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR INFORMATION TECHNOLOGY AS -NEEDED PROFESSIONAL SERVICES List and describe fully the contracts performed by your firm that demonstrate your ability to provide the supplies, equipment or services included in the scope of the proposal specifications. Attach additional pages if cult aired. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Client Name City/Type of Business Engagement Description Contact Contract Amount Global Vancouver Full time 24x7 Help Natasha Raj $280,000.00 Container BC/Shipping Desk support personnel 604-267-5361 Terminals Terminal in place. Network Auditing and Planning PAGE 1 13 City of Santa Ana I Information Technology As -Needed Professional Services Proposal 25E-176 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: COOPERATIVE AGREEMENT WITH THE ORANGE COUNTY TRANSPORTATION AUTHORITY FOR THE USE OF RIGHT OF WAY FOR THE OC STREETCAR PROJECT (NON -GENERAL FUND) (STRATEGIC PLAN NOS. 3,2C, 413; 6, 1G) 155 11M R� CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2"' Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a cooperative agreement with the Orange County Transportation Authority for the term beginning on the effective date of this agreement for a period of 50 years, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION On July 7, 2015, a Memorandum of Understanding (MOU) was approved by City Council with the Orange County Transportation Authority (OCTA) for implementation of the OC Streetcar Project (Project). The MOU outlines the general roles and responsibilities for the development, implementation, operations, and maintenance phases of the Project between the City of Santa Ana and OCTA. The MOU was subsequently approved by the OCTA Board of Directors on July 13, 2015. On March 15, 2016, a Design Cooperative Agreement with OCTA was approved by City Council for design of the OC Streetcar Project. The Federal Transit Administration requires grantees to have "continuing control" on property where federal funds have been invested through the implementation of a transit project. The recommended agreement provides the requisite continuing control for OCTA to construct, operate, and maintain the Project in the City's public right of way. The intent of the agreement is to define the limits of use and each agency's roles, responsibilities, and commitments as they relate to OCTA's facilities in the public right of way. The public right of way includes the City's streets and other improvements owned or controlled by the City. 25F-1 OC Streetcar Use of Right of Way Cooperative Agreement February 7, 2017 Page 2 Consensus has been reached with OCTA on the specific terms and conditions of the draft cooperative agreement (Exhibit 1). A summary of the key provisions of the draft agreement are as follows: • The term of this agreement is for 50 years with a 20 -year extension at the discretion of OCTA. Further extensions are allowed upon mutual agreement. • The limits of the use of the City's public right of way secured by this agreement are consistent with the OC Streetcar alignment. • This agreement does not include provisions for parcels of property owned by the City outside of the City's public right of way. • The City and all third parties must secure a permit from the OCTA when working within the OCTA's controlled work access limits - generally 10' from the overhead contact system (poles, span wires, and contact wire) and within 4' of any rail. • The City and OCTA agree to keep each other informed about future projects that may impact the others' use of the right of way. • There is no cost associated with the cooperative agreement. Staff will request City Council approval for additional agreements throughout 2017, needed to advance the project, including a Construction Cooperative Agreement and an amendment to the Santa Ana Regional Transportation Center Station agreement. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet the following Strategic Plan Goals: Goal #3 - Economic Development, Objective #2 (create new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies), Strategy C (support business development and job growth along transit corridors through the completion of critical transit plans/projects including: The Fixed Guideway Project, Santa Ana Regional Transportation Center Master Plan, Complete Streets and General Plan Circulation Element update). Goal #3 - Economic Development, Objective #4 (continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination), Strategy B (create a comprehensive program to manage parking that includes innovative strategies to provide parking, create revenue and enhance accessibility in the downtown). 25F-2 OC Streetcar Use of Right of Way Cooperative Agreement February 7, 2017 Page 3 Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy G (develop and implement the City's Capital Improvement Program in coordination with the Community Investment and Deferred Maintenance Plans; e.g., transit vision, street car, fixed guideway project, SARTC master plan, Bristol Street widening, neighborhood streets, traffic improvements, park facilities, sport fields, soccer fields, senior centers, bike master plan, etc.). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact associated with this action. Y' re Mousavipour Executive Director Public Works Agency FM/EWG/JG/ST Exhibits: 1. Use of Right of Way Cooperative Agreement 25F-3 25F-4 1 2 3 4 5' 6'' 7 61 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-6.1433 COOPERATIVE AGREEMENT NO. C-6-1433 BETWEEN ORANGE COUNTY TRANSPORTATION AUTHORITY AND CITY OF SANTA ANA FOR USE OF THE CITY RIGHT OF WAY THIS COOPERATIVE AGREEMENT ("Agreement"), is effective this day of , 2017, by and between the Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184, Orange California 92863-1584, a public entity of the State of California (herein referred to as "AUTHORITY") and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the laws of the—State- of. California (hereinafter referred to as "CITY") each individually known as "Party" and collectively known as the "Parties". RECITALS: WHEREAS, the AUTHORITY and the CITY entered into a Memorandum of Understanding ("MOU") on August 31, 2015 for the OC Streetcar Project, which MOU provides, among other things, for the Parties to work in partnership for the implementation of the OC Streetcar Project and the grant from the CITY to the AUTHORITY of a perpetual right to operate the OC Streetcar System within City Right of Way ('ROW'); WHEREAS, the AUTHORITY and the CITY agree that the use of City ROW for the OC Streetcar Project constitutes a use of such right of way for street purposes; WHEREAS, the AUTHORITY and the CITY entered into a Design Agreement for the design phase of the OC Streetcar Project; WHEREAS, the AUTHORITY and the CITY intend to enter into a Construction Agreement for Page 1 of 13 F:\SG&A\SG&A Client Folders\5 - HDR Engineering\06.09.15 - OCTA - Program Management\Work Tasks\1 - Agreements\11 - SA Use Agreemenna- Final\AG61433-20161215 OCSC ROW Use Agreement - SA - Final - Updated.docx EXHIBIT 1 COOPERATIVE AGREEMENT NO. G-6.1433 1 the construction phase for the OC Streetcar Project; 2 WHEREAS, the AUTHORITY and the CITY intend to enter into an Operations and 3 Maintenance Agreement for the operations and maintenance phase of the OC Streetcar System; 4 WHEREAS, the CITY is the owner of various City ROW where the OC Streetcar System is 5 proposed; 6 WHEREAS, the AUTHORITY, proposes to occupy and use a portion of such City ROW for 7 the construction of the OC Streetcar Project and the operation, and maintenance of the OC 8 Streetcar System; g WHEREAS, this Agreement defines the roles, responsibilities, commitments, obligations, and 10 expectations for the AUTHORITY and the CITY as they relate to the Authority's Use Rights, 11 including financial obligations; and 12 WHEREAS, the CITY desires by this Agreement to grant such rights and privileges to the 13 AUTHORITY, and to document the terms and conditions upon which such City ROW may be used 14 by the AUTHORITY for the construction, operation, and maintenance of the OC Streetcar System. 15 NOW, THEREFORE, it is mutually understood and agreed by the AUTHORITY and the CITY 16 as follows: 17 ARTICLE 1. DEFINITIONS 18 The following definitions shall apply throughout this Agreement, which includes those 19 attachments hereto that are incorporated by reference. 20 A. "Authority Use Rights" means the rights to use the City ROW, as granted to the 21 AUTHORITY in this Agreement. 22 B. "City ROW" means the CITY's right of way, including streets and other improvements 23 thereto, which is owned or controlled by the CITY and to which CITY is granting Authority Use 24 Rights as generally depicted in Exhibit A. 25 C, "Construction Agreement" means the cooperative agreement that will be put in place 26 Page 2 of 13 F:1SG&A1SG&A Client Folders\6- HDR EngineeringW6.09.15 -OCTA- Program Management\Work Tasks\1 -Agreements\11 - SA Use Agreement\6- Final\AG61433-20161215 OCSC ROW Use Agreement - SA - Final - Updated.docx 25F-6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-6-1433 between the AUTHORITY and the CITY which will document the terms and conditions pursuant to which the OC Streetcar Project will be constructed. D. "Contractor" means any contractor or consultant who executes an agreement with the AUTHORITY for design and/or construction activities related to the OC Streetcar Project. E. "Design Agreement" means Cooperative Agreement C-5-3583 between Authority and CITY for the design phase of the OC Streetcar Project, dated May 9, 2016, which sets forth the terms and conditions to which the OC Streetcar Project will be designed. F. "Effective Date" means the date this Agreement is executed by both Parties. G. 'Occupied City ROW" means that portion of City ROW to be physically occupied by OC Streetcar System improvements in accordance with this Agreement, the Design Agreement, the Construction Agreement, and Project Submittals. H. "OC Streetcar Proiect" or "Project" means the planning, design, financing, construction, and installation of the OC Streetcar System as set forth in the Design Agreement and/or Construction Agreement. The OC Streetcar Project becomes the OC Streetcar System upon initiation of Revenue Service. I. "OC Streetcar System" means the OC Streetcar passenger transportation system to be owned, operated, and maintained by the AUTHORITY including all tracks, stations, streetcar vehicles, conduits, electrical lines, traction power poles, traction power substations, cross -span wires, streetcar signal equipment, maintenance facilities, and other functionally related and appurtenant equipment and facilities, J. "Operations and Maintenance Agreement" means the cooperative agreement to be entered into between the AUTHORITY and the CITY establishing the roles, responsibilities, and expectations with respect to the operations and maintenance of the OC Streetcar System. K. "Plans and Specifications" means the Project plans, specifications, and special provisions prepared by the AUTHORITY providing the information necessary to construct the Project Page 3 of 13 F;\SG&A\SG&A Client Folders\5 - HDR Engineering\05,09.15 - OCTA- Program Management\Work Tasks\1-Agreements\11 - SA Use Agreement\ - Final\AG61433-20161215 OCSC ROW Use Agreement - SA - Final - Updated.docx 25F-7 COOPERATIVE AGREEMENT NO, C-6-1433 1 which relate to the interests of the CITY under the Design Agreement, 2 L. "Project Submittals" means all shop drawings, product data, test data, construction 3 submittals, construction schedules, fabrication drawings, erection drawings or similar documents 4 which are produced by the AUTHORITY's Contractor during the construction of the Project, which 6 relate to the interests of the CITY under the Construction Agreement, and which are reviewed by the 6 CITY according to procedures and standards set forth in the Construction Agreement. 7 M. "Revenue Service" means the point at which the OC Streetcar System is operational 8 and providing service to the public as intended. g ARTICLE 2. COMPLETE AGREEMENT 10 A. This Agreement (which includes the above Recitals and those attachments 11 incorporated herein by reference), the Design Agreement, Construction Agreement, and Operations 12 and Maintenance Agreement executed or intended to be executed by the Parties that are 13 incorporated herein by reference, constitute the entire terms and conditions for the subject matter 14 addressed in this Agreement between the AUTHORITY and the CITY. The invalidity in whole or in 15 part of any term or condition of this Agreement shall not affect the validity of other terms or 16 conditions of this Agreement. To the extent there is any conflict as between this Agreement and 17 other agreements entered into by the Parties that are referenced herein, this Agreement shall control 1 B with respect to the subject matter covered herein. 19 B. The AUTHORITY's failure to insist on any instances of the CITY's performance of any 20 terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the 21 AUTHORITY's right to such performance or to future performance of such terms or conditions, and 22 the CITY's obligation in respect thereto shall continue in full force and effect. Changes to any 23 portion of this Agreement shall not be binding upon the AUTHORITY. except when specifically 24 confirmed in writing by an authorized representative of the AUTHORITY by way of a written 25 amendment to this Agreement and issued in accordance with the provisions of this Agreement, 26 Page 4 of 13 FASG&A1SG&A Client Folders\5 - HDR Engineering\05.09.15 -OCTA- Program Management\Work Tasks\1-Agreements\1 1 -SA Use Agreements- Final\AG61433-20161215 OCSC ROW Use Agreement - SA - Final - Updated.docx 25F-8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-6.1433 C. The CITY's failure to insist on any instances of the AUTHORITY's performance of any terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the CITY's right to such performance or to future performance of such terms or conditions, and the AUTHORITY's obligation in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not be binding upon the CITY except when specifically confirmed in writing by an authorized representative of the CITY by way of a written amendment to this Agreement and issued In accordance with the provisions of this Agreement. ARTICLE 3. SCOPE OF AGREEMENT This Agreement specifies the roles and respora!bilties of the Parties as they pertain to the AUTHORITY's use of City ROW. Both the AUTHORITY and the CITY agree that each will cooperate and coordinate with the other in all activities covered by this Agreement and any other supplemental agreements that may be required to facilitate the purposes thereof. ARTICLE 4. CONSIDERATION In consideration for the Authority Use Rights granted by the CITY to the AUTHORITY hereunder, the AUTHORITY agrees to construct, operate and maintain the OC Streetcar System as set forth in or as to be set forth in the Design Agreement, Construction Agreement, Plans and Specifications, Project Submittals, and Operations and Maintenance Agreement. ARTICLE 6. TERM Beginning on the Effective Date, this Agreement and the Authority Use Rights herein granted shall be operative for a period of 50 years (the "Initial Term"), subject to earlier termination as provided by Article 6, AUTHORITY may, in its discretion, extend this Agreement upon the same terms and conditions existing at the time of such extension for an additional term of up to 20 years ("Extended Term"), To exercise its right to the Extended Term, AUTHORITY shall provide written notice to the CITY no later than 24 months prior to the expiration of the Initial Term. For any period beyond the Extended Term, this Agreement may be extended by mutual consent of the Parties at Page 5 of 13 F:\SG&A\SG&A client Folders\5 • HOR Engineering\05.09.16- OCTA- Program ManagememMork Tasks\l -Agreements\11 - SA Use Agreements- Final\AG61433-20161215 OCSC ROW Use Agreement - SA - Final - Updated.docx 25F-9 COOPERATIVE AGREEMENT NO, C-6-1433 1 any time prior to the expiration of the Extended Term, to the extent permitted by law. 2 ARTICLE 6. TERMINATION 3 A. This Agreement may not be terminated by either Party for convenience. 4 B. This Agreement, and the Authority Use Rights granted hereby, shall be subject to 5 termination at the option of the CITY and by written notice delivered to the AUTHORITY upon the 6 occurrence of any of the following events: 7 (i) The AUTHORITY shall fail to advance the Streetcar Project to begin Revenue 8 Service no later than December 31, 2025, provided any such discontinuation is not caused 9 by Force Majeure as described in Article 13, or 10 (ii) The AUTHORITY shall intentionally abandon the Occupied City ROW, or 11 expressly disavow the Authority Use Rights, or 12 (iii) The AUTHORITY shall discontinue regular OC Streetcar System operations for a 13 consecutive period of one year consistent with the Operations and Maintenance Agreement 14 and requirements of the Federal Transit Administration, provided any such discontinuance is 15 not caused by Force Majeure as described in Article 13 or for other reasons outside 16 AUTHORITY's reasonable control. 17 C. AUTHORITY may terminate this Agreement if the AUTHORITY determines, upon 18 reasonable notice to and concurrence by the CITY, that the OC Streetcar System is not a viable 19 mode of transportation either due to lack of passengers, lack of revenue, lack of funding, other 20 modes of transportation that are developed making the OC Streetcar System relatively inefficient, or 21 other similar reasons. 22 ARTICLE 7. DEFAULT 23 Either Party may be deemed in default under this Agreement by the other Party upon the 24 failure of such Party to observe or perform any material covenant, condition or agreement on its part 25 to be observed or performed hereunder, and the continuance of such default for a period of ninety 26 Page 6 of 13 F:1SG&A\3G&A Client Foldorsl5 - HDR Engineering\05,09,15.00TA - Program Management\work Tasksll - Agreements\11 - SA Use Agreements- FinaIWG61433-20161215 OCSC ROW Use Agreement - SA - Final - Updated.docx 25F-10 COOPERATIVE AGREEMENT NO. C-6.1433 1 (90) days from the date the failing Party has received written notice from the other Party. Such 2 notice shall specify the default and request that it be remedied within 90 days or such other longer 3 time as may be set forth in the notice. The Party giving such notice may agree in writing to an 4 extension of such time period. If the failure identified in such notice cannot be corrected within the 5 applicable period, it shall not give rise to a default hereunder if appropriate remedial action is 6 promptly instituted within the applicable period and diligently pursued until such default is corrected. 7 In the event of a default hereunder that is not remedied by the defaulting party in accordance with 8 this provision, the non -defaulting Party shall have a breach of contract claim and remedy against the 9 other in addition to any other remedy provided or permitted by law, provided that no remedy which 10 would have the effect of amending any provisions of this Agreement shall become effective without 11 the formal amendment of this Agreement. 12 ARTICLE 8. COMPLIANCE 13 To the extent required, the AUTHORITY and the CITY shall comply with all applicable 14 federal, state, and local laws, statues, ordinances and regulations of any governmental authority 15 having jurisdiction over the Project. 16 ARTICLE 9. INDEMNIFICATION 17 A. To the fullest extent permitted by law, the CITY shall defend (at the CITY's sole cost 18 and expense with legal Counsel reasonably acceptable to the AUTHORITY), indemnify, protect, and 19 hold harmless the AUTHORITY, its officers, directors, employees, and agents from and against any 20 and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, 21 settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney 22 fees, including but not limited to claims arising from injuries to or death of persons (the CITY's 23 employees included), for damage to property, including property owned by the AUTHORITY, or from 24 any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent 25 acts, omissions or willful misconduct of the CITY, its officers, directors, employees or agents in 26 Page 7 of 13 F\SG&NSG&A Client Folders\5- HDR Engineering105.09.15 - OCTA. Program ManagementMork Tasks\1 -Agreements\11 - SA Use Agreementl5- FlnaltAG61433-20161215 OCSC ROW Use Agreement - SA - Final - Updated.docx 25F-11 COOPERATIVE AGREEMENT NO, C-6-1433 1 connection with or arising out of the performance of this Agreement. 2 B. To the fullest extent permitted by law, the AUTHORITY shall defend (at the 3 AUTHORITY's sale cost and expense with legal counsel reasonably acceptable to the CITY), 4 indemnify, protect, and hold harmless the CITY, its officers, directors, employees, and agents from 5 and against any and all liabilities, actions, sults, claims, demands, losses, costs, judgments, 6 arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal 7 costs and attorney fees, including but not limited to claims arising from injuries to or death of 8 persons (the AUTHORITY's employees included), for damage to property, including property owned 9 by the CITY, or from any violation of any federal, state, or local law or ordinance, alleged to be 10 caused by the negligent acts, omissions or willful misconduct of the AUTHORITY, its officers, 11 directors, employees or agents in connection with or arising out of the performance of this 12 Agreement. 13 C. The indemnification and defense obligations of this Agreement shall survive its 14 expiration or termination. 15 ARTICLE 10. LEGAL AUTHORITY 16 The persons executing this Agreement on behalf of the AUTHORITY and the CITY represent 17 that they are authorized to execute this Agreement on behalf of their respective Parties and that, by 18 so executing this Agreement, the Parties hereto are formally bound to the provisions of this 19 Agreement. 20 ARTICLE 11. SEVERABILITY 21 If any term, provision, covenant or condition of this Agreement is held to be invalid, void or 22 otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this 23 Agreement shall not be afrected thereby, and each term, provision, covenant or condition of this 24 Agreement shall be valid and enforceable to the fullest extent permitted by law. 25 ARTICLE 12, COUNTERPARTS OF AGREEMENT 26 Page 8 of 13 F:\SG&A\SG&A Client Folders\5 - HDR Engineering\05.09.15. OCTA - Program ManagementlWork Tasks\1-AgreementsVl 1 - SA Use Agreement\6- Final\AG61433-20161215 OCSC ROW Use Agreement - SA - Final - Updated.docx 25F-12 COOPERATIVE AGREEMENT NO. C-6.1433 1 This Agreement may be executed and delivered in any number of counterparts, each of 2 which, when executed and delivered shall be deemed an original and all of which together shall 3 constitute the same agreement, Facsimile or emailed PDF documents with signatures will be 4 permitted, 5 ARTICLE 13. FORCE MAJEURE 6 Either Party shall be excused from performing its obligations under this Agreement due to 7 any event beyond the control of the Party to the extent the event materially and adversely affects a 8 Party's ability to perform its obligations under this Agreement and could not have been avoided by 9 reasonable due diligence. Force Majeure events shall include, but not be limited to: (i) discovery of 10 any resources or a change in law which requires a state or federal approval that was not previously 11 required for the Project; (ii) regulatory and technical changes not previously required for the Project; 12 (iii) fire, flood, earthquake, or other natural disaster; (iv) strikes and labor disputes of greater than 30 13 days; (v) delays caused by permitting agencies that exceed the reasonably anticipated review times, 14 (vi) failure of utilities to relocate in a reasonable time; and (vii) war, terrorist activities, government 15 sanctions, embargos, civil unrest, and material or labor shortages. A Party's performance will only 16 be excused for the length of the delay and any reasonable time thereafter that is necessary to 17 commence performance of a Party's obligations under this Agreement. 18 ARTICLE 14. ASSIGNMENT 19 Neither this Agreement, nor any of the Parties' rights, obligations, duties, or authority 20 hereunder may be assigned in whole or in part by either Party without the prior written consent of the 21 other Party, Any such attempt of assignment shall be deemed void and of no force and effect. 22 Consent to one assignment shall not be deemed consent to any subsequent assignment, nor the 23 waiver of any right to consent to such subsequent assignment. Notwithstanding the foregoing, 24 AUTHORITY may assign this Agreement to another public entity provided that it provides notice to 25 CITY at least six (6) months prior to the effective date of such assignment. The notice shall include 26 Page 9 of 13 F:\SG&A\SG&A Client Folders\5 - HDR EnglneedngM.09.15 - OCA- Program Management\work Tasks\1 - Agraements\11 - SA Use Agreements - Final\AG61433-20161215 OCSC ROW Use Agreement - SA - Final - Updated.docx 25F-13 COOPERATIVE AGREEMENT NO. C-6.1433 1 evidence that such public entity is authorized by law to operate the Streetcar System and has the 2 financial capability, infrastructure and personnel to meet AUTHORITY's obligations under this 3 Agreement. CITY shall approve such assignment within 45 days of such notice from AUTHORITY, 4 unless CITY reasonably determines that the proposed assignee cannot meet the obligations of this 5 Agreement. AUTHORITY shall provide such additional information as is reasonably required by 6 CITY to make its determination, 7 ARTICLE 16, SUBCONTRACTING 8 AUTHORITY may, in its sole discretion, enter into contracts with third parties to perform any g of its obligations under this Agreement, provided that AUTHORITY notifies CITY of such contract 10 prior to entering into a contract with any contractor. AUTHORITY shall include in such contracts the 11 obligation of the contractor to comply with all applicable terms of this Agreement, including without 12 limitation insurance and indemnity requirements. Notwithstanding the foregoing, AUTHORITY shall 13 remain primarily responsible for performance of all obligations and exercise of all rights assigned to 14 AUTHORITY under this Agreement. 15 ARTICLE 16. GOVERNING LAW AND VENUE 16 The laws of the State of California and applicable local and federal laws, regulations and 17 guidelines shall govern this Agreement. The Parties agree that Orange County, California shall be 18 the venue for any action or proceeding that may be brought in connection with this Agreement. 19 ARTICLE 17. DISPUTE RESOLUTION 20 All disputes arising under this Agreement shall be resolved in accordance with the dispute 21 resolution process in this article. The Parties shall diligently cooperate with each other in an effort to 22 resolve any dispute during the dispute resolution process. If a dispute arises under this Agreement, 23 either Party may file a written request with the other Party to invoke the dispute resolution process. 24 Upon receipt of such a request each Party shall designate a staff representative, which 25 representatives shall meet within 14 days of the date of the written request in an effort to resolve the 26 Page 10 of 13 F:\SG&A\SG&A Client Folders\5 - HER Engineering\05.09,15.00TA - Program ManagemenAWork Tasks\1 - Agreements111 - SA Use Agreement%- FinahAG61433-20161215 OCSC ROW Use Agreement - SA - final - Updated,docx 25F-14 1 2 3 4 5 6 7 8 9i 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-6-1433 dispute. If the dispute has not been resolved within 14 days or any extension thereof mutually agreed upon by the Parties, the dispute shall be referred to each Party's Executive Director, who shall meet within 14 days of the referral in an effort to resolve the dispute. If the Executive Directors are unable to resolve the dispute within 14 days or any extension thereof mutually agreed upon by the Parties, then the dispute shall be referred to the AUTHORITY's Chief Executive Officer and the CITY's City Manager, who shall meet within 14 days of the referral in an effort to resolve the dispute. If the dispute remains unresolved within such 14 days or any extension thereof mutually agreed upon by the Parties, either Party may initiate litigation. ARTICLE 18. LITIGATION FEES Should any litigation arise out of this Agreement for the performance thereof, each Party shall be responsible for its own costs and expenses, including attorney's fees. ARTICLE 19, NOTICES Any notices, requests, or demands made between the Parties pursuant to this Agreement shall be in writing and delivered by certified mail. Phone and email may be used for convenience but are not considered as official notice. Notices are to be directed as follows: To CITY: To AUTHORITY: City of Santa Ana Orange County Transportation Authority 20 Civic Center Plaza 550 South Main Street P,O, Box 1988 P,O. Box 14184 Santa Ana, CA 92701 Orange, CA 92863-1584 Page 11 of 13 FASCWSG&A Client Folders\5 - HDR Engineering\05.09.15 - CCTA- Program Manogemenl\Work Tasks\l - AgreemenW11 - SA Use Agreement\E- Final\AG61433-2.0161215 OCSC ROW Use Agreement - SA - Final - Updated.docx 25F-15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 COOPERATIVE AGREEMENT NO, C-6.1433 ATTENTION: ATTENTION: Maria D. Huizar Bridget Carman Clerk of the Council Senior Contract Administrator Tel. (714) 647-6520 Contracts Administration and Materials Management Tel: (714) 560.5478 E -Mail: bearman@oota.net Cc: Cc: Fred Mousavipour Jim Bell Executive Director, Public Works Agency Executive Director, Capital Programs Tel: (714) 647-5654 Tel: (714) 560-5646 E -Mail: fmousavipour@santa-ana.org E -Mail: JBeil(o)octa.net Cc: City Attorney ARTICLE 20, AMENDMENTS This Agreement may be modified or amended only by a written document executed by both the AUTHORITY and the CITY. Such document shall expressly state that it is intended by the Parties to amend specifically identified terms and conditions of this Agreement. ARTICLE 21. INCORPORATION OF EXHIBITS This Agreement in its entirety includes the Exhibits listed below, all of which are, by this reference, incorporated herein and made part hereof as though fully set forth. The Exhibits of this Agreement are: EXHIBIT A — CITY ROW EXHIBIT B — USE OF CITY ROW EXHIBIT C — CONTROLLED WORK ACCESS ZONE CITY OF SANTA ANA ORANGE COUNTY TRANSPORTATION AUTHORITY Page 12 of 13 F:\SG&A%SG&A Client Folders\5- HDR EnglneeringW.09.15 - OCTA- Program Managemenl\work Tasks\t -Agreements\11 -SA Use AgreemenM- Final\AG61433-20161216 OCSC ROW Use Agreement- SA - Final - Updated.docx 25F-16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 By: Gerardo Mouet Acting City Manager APPROVED AS TO FORM: BY nia Carvalho City Attorney APPROVAL RECOMMENDED: COOPERATIVE AGREEMENT NO. C-6-1433 By: Darrell Johnson Chief Executive Officer APPROVED AS TO FORM: By: James M. Donich General Counsel APPROVAL RECOMMENDED: By: By: Fred Mousavipour Jim Bell Executive Director, Public Works Agency Executive Director, Capital Programs Dated : ATTEST: By: _ Maria D. Huizar Clerk of the Council Dated : LIST OF EXHIBITS Exhibit A — CITY ROW Exhibit B — Use of City ROW Exhibit C — Controlled Work Access Zone Dated: Page 13 of 13 FASG&A18G&A Client Foldersl5 - HDR Engineering105.09.15 - OCTA- Program Management\Work TasW1 - AgreementsV11 -SA Use Agreement\- Fin a11AG61433-20161215 OCSC ROW Use Agreement - SA - Final - Updated,doex 25F-17 COOPERATIVE AGREEMENT NO. C•6.1433 EXHIBIT A CITY ROW EXHIBIT A CITY now 101-1 a Exh ihit A Page 1 25F-18 EXHIBIT A CITY ROW 2088 f COOPERATIVE AGREEMENT N0, C•8.1433 EXHIBIT A m Exhibit A Page 2 25F-19 KEY mp t i NOT TO 4f LLE Exhibit A Page 2 25F-19 f COOPERATIVE AGREEMENT NO. C4-1433 EXHIBIT A Exhibit A Page 3 25F-20 COOPERATIVE AGREEMENT NO. C4.1433 EXHIBIT A Exhibit A Page 4 25F-21 EXHIDITA CITY ROW SOF8 AIry N&I, IWAI COOPERATIVE AGREEMENT NO. C-6-1433 EXHIBIT Exhibit Page 5 25F-22 COOPERATIVE AGREEMENT NO. C-6.1433 EXHIBIT A EXHIBIT A CITY ROW 6OF6 id S✓i Nn FlltlllfmGev M viar, To. 2 E 5 I .. i li . w8arr�'n Arvn etSn .. I "I 4 r. Wi BlfldGil:ARp I.aNMl11Y YYW- i EXhIbIt A Page 6 25F-23 COOPERATIVE AGREEMENT NO. C-6.1433 EXHIBIT A ExhibltA Page 7 25F-24 COOPERATIVE AGREEMENT NO, C-6-1433 EXHIBIT A Exhibit A Page 6 25F-25 COOPERATIVE AGREEMENT NO. C-6-1433 EXHIBIT B USE OF CITY RIGHT OF WAY 1.0 DEFINITIONS All capitalized terms used in this Exhibit B shall have the same meaning ascribed to them in Article 1 of the Agreement. 2.0 USE OF CITY ROW A. CITY hereby grants to AUTHORITY a non-exclusive use of the City ROW, necessary to accommodate the construction of the OC Streetcar Project and the operation and maintenance of the OC Streetcar System. Authority Use Rights shall be limited to the terms, conditions, limitations and restrictions contained in this Agreement. B. The location and extent of the City ROW which may be utilized by the AUTHORITY for the construction of the OC Streetcar Project and the operation and maintenance of the OC Streetcar System, and the scope and nature of such use, shall be governed by this Agreement, the Design Agreement, Construction Agreement, Plans and Specifications, Operations and Maintenance Agreement and in accordance with the Project Submittals. C. The CITY has previously granted licenses or permits affecting all or portions of the City ROW to persons and/or entities not a party to this Agreement which may impact the Authority Use Rights. Nothing contained in this Agreement shall be construed as granting AUTHORITY any rights or claims for damages against the CITY relating in any way to the existence of any such licenses or permits. To the extent that CITY may be required to grant a license, permit, or other rights in City ROW it shall notify AUTHORITY of any planned use which could potentially impact AUTHORITY's operations and cooperate with AUTHORITY to implement terms for such use to eliminate, to the extent practicable, any such impacts. D. The CITY may use the Occupied City ROW for its own purposes, but only to the extent that such use does not materially interfere with Authority Use Rights. To the extent the City uses the Occupied City ROW for its own purposes, it shall notify AUTHORITY of any planned use Exhibit B Page 1 25F-26 COOPERATIVE AGREEMENT NO. C-6.1433 EXHIBIT B which could potentially impact AUTHORITY'S operations and cooperate with AUTHORITY to implement terms for such use to eliminate, to the extent practicable, any such impacts. E. The Authority Use Rights are exclusive to the AUTHORITY and AUTHORITY shall not assign except as provided in this Agreement any interest, rights or benefits in City ROW that Is the subject of this Agreement, and shall not sublease, sell utility or other telecommunication permits, licenses, franchises, excess capacity easements or in any way use City ROW for any purpose other than as specifically described in this Agreement, F. The Authority Use Rights shall not be subject to any franchise fee, license fee, rental charge or any other such fee or charge for AUTHORITY's use of the City ROW for the OC Streetcar System operations and routine maintenance activities. This shall not preclude the CITY from charging fees for plan checks, inspections or other types of services on routine maintenance involving lane closures and capital improvement projects the AUTHORITY initiates in amounts that it charges other persons for similar services. 3.0 COORDINATION OF ADJACENT PROJECTS The CITY agrees to keep the AUTHORITY informed on projects, outside of the City ROW, that CITY determines may interfere with the Project or OC Streetcar System, to the extent CITY is aware of such projects. This includes, but is not limited to, utility projects, communication projects, development projects, and other improvement projects. 4.0 OPERATIONS AND MAINTENANCE Operations and maintenance activities will be as agreed in the Operations and Maintenance Agreement entered into between the CITY and AUTHORITY. 5,0 FUTURE STREETCAR CONSTRUCTION BY AUTHORITY The AUTHORITY agrees that the CITY shall have the right to review and approve all future additions, changes and alterations to, and modifications and replacements of, any OC Streetcar System improvements on Occupied City ROW which Wellld materially change the OC Streetcar Exhibit B Page 2 25F-27 COOPERATIVE AGREEMENT NO. C-6.1433 EXHIBIT B System or Authority Use Rights, The AUTHORITY shall not make such additions, changes, alterations, modifications or replacements without first obtaining written approval from the CITY. 6.0 FUTURE PROJECTS IMPACTING STREETCAR The CITY agrees that the AUTHORITY shall have the right to review and approve all future additions, changes and alterations to, and modifications and replacements of, CITY and third party facilities or use thereof which would materially interfere with the AUTHORITY's operation of the OC Streetcar System or otherwise adversely affect the rights of the AUTHORITY under this Agreement. Subject to any requirement by law for the CITY to act, the CITY shall not issue permits, licenses or other authorizations to third parties which would materially interfere or otherwise adversely affect the rights of the AUTHORITY without first obtaining written approval from the AUTHORITY, which approval shall not be unreasonably withheld. 7.0 OC STREETCAR CONTROLLED WORK ACCESS ZONE All work activities, either those of the CITY or third parties, within the controlled work access zone limits depicted and described in Exhibit C, require a permit issued by the AUTHORITY prior to work commencing. The CITY shall not issue any permits to any third parties to work in the City ROW, within the controlled work access zone depicted and described in Exhibit C, without prior evidence of a current AUTHORITY access permit, The specific rules and regulations related to such AUTHORITY access permits shall be delineated in a future agreement between the Parties. 8.0 TRAFFIC REGULATIONS Streetcar vehicles traveling on CITY streets shall be subject to all generally applicable speed limits and other traffic control ordinances and regulations, consistent with state and federal law, 9.0 DUTY TO RESTORE Upon the expiration of this Agreement, or earlier termination or partial termination of Authority Use Rights and/or this Agreement, all OC Streetcar System improvements located on Occupied City ROW as to which Authority Use Rights have been terminated shall, at the option of Exhibit B Page 3 25F-28 COOPERATIVE AGREEMENT NO. C-6-1433 EXHIBIT B the CITY, as to any or all of the OC Streetcar System improvements, be removed by the AUTHORITY, and the Occupied City ROW shall be restored to a condition consistent with CITY standard plans and the then Current condition of adjoining streets or other public facilities with respect to grade, appearance, quality, finish, and type of construction, at the sole cost and expense of the AUTHORITY. Restoration shall be performed within one hundred eighty (180) days of such expiration or termination, or such longer period as shall be required by the nature of the work and agreed to by the CITY and the AUTHORITY. For any improvements left intact at the option of the CITY, CITY shall retain all ownership and possession thereof at no cost to CITY. Exhibit B Page 4 25F-29 CONTROLLED WORK ACCESS ZONE I., mme cc«mwua. COOPERATIVE AGREEMENT NO. C-6-1433 EXHIBIT C U - LRACK CANTILEVER OCS SECTION rNxlaai IAOR n 5o Wrlurz an WIIIMX a1eCe4 NN srry AMIA NA 0.p` 1 tlM .ft AININT 1. D01191 TRACK ,SPAN WIRE EECTION .,I ANN .0 lams 4 m.1. eu SMIA. NIIN 14M111, IT m MITI. Xn NOW, 6Imi..Ittlo MM Adn" MM rz m"I' ll.19 oln m IMLNINJ NLMO IIIc ItYwi Iµ I'll.., 0N. INOOWatEi AW INE,,lQ.lN IM IPDAHI NIM ANY PONNI. M A l9q. Slro. AI® YG 1101 q%gAj[p MfINf 6Y5RMIW1. 9R WWll(S Nt INRMNN EXHIBIT C Nil el 14N4RAEt CON'IROLI.EI7 WORK ACCESS MME e. IN n<mE wrill.. 10r "Iu NIAMNba, aE Nea l fm NINNIO<L etwlfIlIT, NIT m lout Exnmlt C Page 1 25F-30 YYM REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: AGREEMENT WITH DATA TICKET INC. FOR PARKING CITATION PROCESSING SERVICES (STRATEGIC PLAN GOAL NO. 1, 5) i CITA4ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2n' Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute a three-year agreement with Data Ticket Inc. for automated parking citation processing services, for the period of February 7, 2017 through February 6, 2020, with the option to extend the agreement for two additional one- year extensions, in the amount of $805,431, plus an additional 10% contingency of $80,544, in the amount of $885,975 subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION On September 22, 2016, the Police Department issued a Request For Proposals (RFP #16-116) for automated parking citation processing services. On October 4, 2016, a pre -proposal meeting was conducted and on October 27, 2016 the City received proposals from five vendors. Data Ticket Inc., Phoenix Group, Duncan Solutions, T2 Systems, and Turbo Data each submitted proposals for consideration. An evaluation committee consisting of representatives from Police Department Traffic Division and the Police Department Information Services Section reviewed and rated the five proposals. The proposals were evaluated based on the evaluation criteria listed in the RFP, including Responsiveness to RFP (30%), Experience of Firm and Personnel (30%), and Cost of Proposal (40%). The proposals from Duncan Solutions and T2 Systems did not score a minimum of 70% on the initial evaluation and were not invited to an interview. The results of the RFP evaluation process are as follows: Vendor Score Data Ticket 554 Phoenix Group 542 Turbo Data 531 600 point max 25G-1 Agreement with Data Ticket for Parking Citation Processing Services February 7, 2017 Page 2 The Police Department proposes to enter into a three-year agreement with Data Ticket Inc. with the option to extend the agreement for two additional one-year extensions. Data Ticket Inc. is a local Orange County business based in Costa Mesa. The Police Department will continue to issue parking citations through hand-held automated units in order to maintain the current level of efficiency and reduced cost associated with this technology. In addition, staff will work with Data Ticket to establish the same online and afterhours services, including the ability to pay citations online and at the City Hall customer kiosk. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal # 1 - Community Safety, Objective #5, (provide high quality Police and Fire/Emergency Medical Services response within the City of Santa Ana) FISCAL IMPACT Funds are available in the Police Department, Traffic Division Fund (account no. 01114405 62300) and Parking Meter Fund (account no. 02710131 62300) for the following fiscal years as follows: 02710131 01114405 62300 62300 FY 2016-17 $131,482.35 $17,500.00 FY 2017-18 $260,984.70 $35,000.00 FY 2018-19 $259,004.70 $35,000.00 FY 2019-20 $129,502.35 $17,500.90 Carlos Rous Chief of Police Santa Ana Police Department Jac l iulla Chi Technology Innovations Officer Information Technology Department Exhibit: 1. Data Ticket Agreement $780,974.10 $105,000.90 $885,975.00 APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez 411 Executive Director Finance & Mgt. Services Agency 25G-2 Exhibit 1 AGREEMENT' FOR AUTOM:AT'Eli PARKING CITATION PROCESSING TRIS AGREEMENT, made and entered into this 7th day of February, 2017 by and between the Data Ticket, Inc., a California corporation (hereinafter "Contractor"), and the City of Santa Arta, a charter city and municipal corporation organized and existing tinder the Constitution and laws of the State of California (hereinafter "City"). RECITAM The City desires to retain a Contractor having special skill and knowledge in the field of processing of automated parking citations and collecting on delinquent accounts, The City issued a Request for Proposal for Parking Citation P;rooessing Services ("RFP" 16-116) in September 2016. Contractor was one of the five vendors that submitted proposals for RFP 16.116 and was awarded the Agreement because atter evaluation of all of the proposals, Contractor was the lowest responsive proposal. 2. Contractor represents that Contractor is licensed by the State of California to provide Automated Parking Citation and Processing Services and that it is willing to provide such services and devices as outlined in its proposal in response to RFP 16-116, 3. In undertaking the performance of this Agreement, Contractor represents that it is lmowledgeablo in its field and that arty services performed by Contractor under this Agreement will be performedin compliance with suds standards as may reasonably be expected from a professional Automated Parldng Citation and Processing Service firm, NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: TERMS AND CONDITIONS 1. TERIVI The term, of this contract shall be for three (3) years. It shall commence the date of City Council award and approval of all insurance and bonds, and terminate on February 6, 2020, unless earlier terminated as set forth in Section 8' of this Agreement, City is bereb,y granted an option to renew 'for up to two one-year extensions on the terms and conditions set forth herein. Said options shall be exercised in writing at least thirty (30) days prior to the end of the Initial term or any exclusion thereof. 2. SCOPE OF SERVICES Consultant shall perforin automated parking citation processing services as set forth in the: City's Request for Proposal for Automated Parking Citation and Processing System rand Comultant's Proposal dated October 27, 2016, attached hereto as Exhibit A and the Addendurn 1 and 2 to Exbibit A and incorporated to this Agreement by this reference. 25G-3 3. COMPENSATION City agrees to pay and contractor agrees to accept as total payment for its sexvices for the total three year period a sum not to exceed $885,975,00. The rates and charges are set forth in contractor's proposal, attached hereto as Exhibit "B" and incorporated by reference. The breakdown of the Agreement cost for each year of the Agreement is set forth below, "Estimates Based upon the citations processed in 2016 Year 1 Year 2 Year 3 Processing $29,500 $29,500 $29,500 Issuance of Notices $61,600 $61,600 $61,600 Additional Notices No Charge No Charge No Charge Additional Letters $4,900 $4,900 $4,900 Parking Appeal Letters $3,744 $3,744 $3,744 Scanning $2,565 $2,565 $2,565 Out of State Collections $12,800 $12,800 $12,800 FTB Collections $26,250 $26,250 $26,250 Hearing Officer $1,000 $1000 $1000 Equipment $3,000 $3,000 $3,000 Software $ 8,640 $ 5,040 $ 5,040 Contingency 10% 10% 10% Voided Cites No Charge No Charge No Charge Dismissed Cases No Charge No Charge No Charge Delinquent Collections Pr $116,878.00 $116,878.00 $116,878.00 Base Cost $270,877.00 $267,277.00 $267,277.00 Total(W/Contingency)---- Contingenc $297,965.00 $294,005.00 $294,005.00 3. INVOICES The contractor shall submit a monthly invoice by the fifteenth of the month to the City for the services rendered in the prior month. All invoices for work performed under this contract shall be submitted in a format approved by the City. Invoices shall include fine following information at a minimtun: A. Contractor's invoice number; B. Beginning and ending dates for services; C. City project nurnber and/or name (if applicable); D, Work site address/location (if applicable); and E. Unit cost, subtotals and total for invoice Payment by City shall be made within sixty (60) days following receipt of proper invoice, subieet to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance of a professional parking control enforcement services, 25G-4 No new work of any kind shall be considered an extra unless a separate estimate is given for said work and the estimate is approved by the City in writing before the work is commenced. The contractor will be required to provide detailed information of such extra work. Documentation of contract compliance may be required on some occasions. Work performed prior to obtaining written approval of the City shall not be included within the Scope of Work and will not be paid. 4. INDEPENDENT CONTRACTOR Contractor shall during the entire term of this contract, be construed to be an independent contractor and not an employee of the City. This contract is not intended nor shall it be construed to create an employer-employee relationship, ajoint venture relationship, or to allow the City to exercise discretion or control over the manner in which contractor performs the services required by this contract. However, the services to be provided by contractor shall be provided in a manner consistent with all applicable standards acid regulations governing such services. Contractor shall pay all salaries and wages, employer's Social Security taxes, unemployment insurance, and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this contract, contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: A. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting there from and damage to property, resulting from any act or occurrence arising out of contractor's operations in the performance of this agreement, including, without limitation, acts involving vehicles. The amorous of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers, and representatives as additional insured(s) in a form approved by the City Attorney's Office; (b) be primary and not contributory with respect to insurance or self-insurance progrruns maintained by the City; and (e) contain standard separation of insureds provisions. B. Business Automobile Liability Insurance. Contractor shall maintain business automobile liability insurance or a similar form, with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation insurance. In accordance with the provisions of Section 3300 of the Labor Code, contractor is required to be insured against liability for Workers' Compensation or to undertake self-insurance. Prior to commencing the performance of the work under this contract, contractor agrees to obtain and maintain any employer's liability insurance 25G-5 with limits not less than One Million Dollars ($1,000,000) per accident. D. If contractor is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than One Million Dollars ($1,000,000) per claim. E, The following requirements apply to the insurance to be provided by contractor pursuant to This section: 1. Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this agreement. 2. Certificates of insurance shall be furnished to the City upon execution of this contract and shall be approved in form by the City Attorney. 3. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. 4. If contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this contract. Such termination shall not affect contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. HOLD HARMLESS/ INDEMNIFICATION To the fullest extent permitted by law, contractor shall indemnify, defend and hold harmless City, its officers, agents and employees (collectively, the "indemnified parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, Judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a claim; collectively, "claims"), which may arise from or in any manner related (directly or indirectly) to any work performed or services provided wider this contract (including, without limitation, defects in workmanship and/or materials) or contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of contractor, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require contractor to indemnify the indemnified parties from any claim arising from the sole negligence or willful misconduct of the indemnified parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this contract. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the contractor. 25G-6 7. NOTICE Any notice, tender, demand, delivery or other communication pursuant to this agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, sent by facsimile communication, or via e-mail to the following persons: To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M-30) Santa Ana, CA 92701 Fax 714-647.6956 With courtesy copies to: Chief of Police City of Santa Ana 60 Civic Center Plaza (M-97) P.O. Box 1988 Santa Ana, California 92702 Fax(714)245-8007 Attn: Chief of Police And City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 647-6515 To Contractor: Data Ticket, Inc. 4600 Campus Drive Newport Beach, California 92660 Fax (949) 752-6033 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting fax machine, addressed as set forth above, For purposes of calculating these time frames, weekends, federal, slate, county, Ro city holidays shall be excluded. 25G-7 S. TERMINATION The City reserves the right to terminate the contract as follows: A. In the event contractor fails or refuses to timely perform any of the provisions of this agreement in the manner required, or if contractor violates any provision of this agreement, contractor shall be deemed in default. City shall provide written notice of such default to contractor. Contractor shall cure said default within a period of two (2) working days. If such cure is not completed in a timely manner, City may assess liquidated damages and/or terminate the agreement forthwith by giving written notice as set forth in this agreement to contractor's project manager. City may, in addition to the other remedies provided in this agreement or authorized by law, terminate this agreement by giving written notice of termination. Contractor shall be responsible for all costs incurred by City, including replacement costs of equipment and labor required to provide service during contractor's default. In the event of such termination for cause, City shall pay contractor that portion of compensation specified in the agreement that is earned and unpaid prior to the effective date of termination. Contractor shall not be entitled to any compensation for lost profits it terminated for cause. B. This agreement may be terminated with cause by City upon thirty (30) days written notice delivered to the contractor either personally or by mail. Upon termination, City shall pay to contractor that portion of compensation specified in the agreement that is earned and unpaid prior to the effective date of termination. C. In addition to, or in lieu of, remedies provided in this agreement or pursuant to law, City shall have the right to withhold all or a. portion of contractor's compensation for contract services if, in the judgment of the projects manager or designee, the level of service falls below appropriate standards and/or contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the projects manager or designee determines that contract services are performed as well and as frequently as required by this agreement. D. The City shall have the right to terminate this Agreement without cause upon sixty (60) days written notice to the contractor. 9, CONFIDENTIALITY AND FILE SECURITY Reasonable security provisions will be provided by Consultant to ensure that access to the City computer records and tiles will be available to the City and any public access mutually agreed upon by Contractor and the City. Consultant cannot guarantee against loss or alteration of computer records but will take reasonable precautions to prevent such occurrences. Consultant will hold all City data in strict confidence pursuant to the terms of this Agreement. If either party receives from the other party information which due to the nature of such information is reasonably understood to be confidential and/or propriety, the receiving party agrees that it shall not use or disclosure such information except in the performance of this Agreement and agrees to exercise the same degree of care it uses to protect its own information 25G-8 of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosure to either party by any subsidiary and/or agent of the party is covered by this information that (a) has been disclosed in publically available sources; (b) is, through, no fault of the receiving party disclosed in a puiblically available source; (c) is in the rightful possession of the receiving party without obligation of confidentiality; (d) is required to be disclosed by operation of law', or (e) is independently developed by the receiving party without reference to information disclosed by the other party, 10. LIQUIDATED DAMAGES If the City determines that the contractor failed to cure its default as set forth in section G of this agreement, the parties to the agreement agree that it would be impracticable and extremely difficult to determine the damage to City arising from such breach. Therefore, in the event of contractor's breach, contractor shall pay to City the sum of $500 a day for such breach, in addition to any cost, fines, etc. levied against the City. 1.1. COMPLIANCE WITH APPLICABLE LAWS, REGULATIONS AND PROFESSIONAL LICENSES Contractor shall perform all requirements under this contract in strict observance of and in compliance with all applicable environmental, traffic, safety and any other laws, regulations, ordinances, codes and any other legislative or statutory requirements. Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and as required by the law and regulations of the United States, State of California, County of Orange, and City of Santa Ana, and any other government agencies. Contractor shall notify City immediately and in writing of its inability to obtain and maintain such permits, licenses, waivers and exemptions. Such inability shall be cause for termination of the Agreement. 12, DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry or disability, as defined and prohibited by applicable law, it the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 25G-9 13. ASSIGNMENT Inasmuch as this contract is intended to secure the specialized services of contractor, contractor may not assign, transfer, delegate or subcontract any interest herein without the prior written consent of City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. 14. JURISDICTION -- VENUE This contract has been executed and delivered in the State of California and the validity, interpretation, performance and enforcement of any of the clauses of this contract shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this contract. 15. FINES The contractor shall be liable for all violation fines levied against the City by federal, state, or local agencies with regulatory authority related to contractor provided services, 16. MISCELLANEOUS PROVISIONS A. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. B. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. H JIZAR Clerk of the Council APPROVED AS TO FORM: SONIA CARVALHO City Attorney CITY OF SANTA ANA GERARDO MOUET Acting City Manager 25G-10 By: �'•� Tamara E3ogosian Assistant City Attorney RECOMMENDED FOR APPROVAL: CARLOSROJAS Police Chief Santa Ana Police Department CONTRACTOR Broom Westcott Chief Operating Officer Tax ID#f 93-1010811 25G-11 Exhibit "A" 25G-12 EXHIBIT A CITY OF SANTA ANA REQUEST FOR PROPOSAi,S FOR AUTOMATED PARKING CITATION AND PROCESSING SERVICES SCOPE OF SERVICES DESCRIPTION AND SCOPE OF WORK The City of Santa Ana is issuing this Request for Proposals (RFP) for Automated Parking Citation and Processing Services, The City desires an integrated software and hardware service solution to parking citation and payment processing, The preferred solution will include hand-held computers for ticket issuance and data download with real-time, online access for public safety officers, the City's Parking Citation Coordinator and Finance Staff to citation Information and citatlon status on a user-friendly reporting structure. A complete package of citation issuance, processing, collection, reporting, hardware and software maintenance Is required. The program and service must also accept and support hand-written citation farms, The Vendor shall coordinate its efforts with the City of Santa Ana Police Department, City of Santa Ana Finance Department, Orange County Court System and other agencies affected by the project, The Vendor will be expected to work closely with the Police Department's Traffic Division and Finance Department to ensu* compatibiiity and uniformity, A. Software Specifications 1), Vendors must provide a software solution for electronic Issuance of citations, Software must be installed on and compatible with the HP/Compaq IPAQ handhold bomputer and Incorporate the following features: a). Citation must be capable of printing on a 2"-45' thermal printer (brand name tc be determined later). Vendor mus) recommend a printer compatible with their software product. 2). Data Entry from Handwritten Citations. a). Receive and date stamp weekly batches of all handwritten citations sent by City; b). Enter citatlon information Into the database; c). Batch, record, and verify receipt of all manual citations within two (2) business days; d), Edit capability to correct dates, duplicate citations, violation codes and fine amounts; e). System for filing/storing citations in easily retrievable formai for a minimum of two (2) years and then dispose in accordance with City direction. 3). Automated Transfer and Upload of citations Issued by the handheld computer. a), Loading of batch files immediately upon transfer; b). Edit capability to correct dates, duplicate citations, violation codes, and fine amounts; c). System to promptly notify City regarding citations unable to be entered for any reason (no violation code, unreadable license, etc.) 4), Registered Owner Name Retrieval. a). Retrieve data online from the State of California Department of Motor Vehicles (DMV); b). Provide daily access to registered owner Information; c). Validate DMV makes upon return of registered owner Information from DMV to ensure proper make of vehicle Issued citation; d). Review DMV "No Hit" list to ensure that license plate and state have been entered correctly; e). Daily registered owner name retrieval for all citatlons without a name on the system, City of Santa Ana--A.itornated Parldng Citation "and Processing Services (RFP 16-116) 2 SGA 3 5). Out•of-State Registered Owner Retrieval from State DMV. a), Maintain regularly scheduled communications with DMV offices in the 60 states; b). Maintain regularly scheduled communications with the Transportation Ministries In Canada and Mexico that permit registration and name acquisition; c), Mail ooilec(lon letters; d), Communicate with individuals outside of the United States who were Issued a parking citation by the City. 6), DMV Registration Holds/Releases. a). Process DMV holds or releases daily; b). Access DMV records online; c). Capability to release registration holds upon City's request; d), Report monthly holds and payments made at DMV; a), Immediate update of database with monthly payment Information from DMV, 7), Automated processing of Administrative Review Requests, a). Vendor shall provide tracking and correspondence for all administrative review; b). Vendor shall enter and maintain database of all administrative review, showing current status of each request. System must be integrated with parking citation issuance and processing system. Ensure a result is received for each correspondence; c). Administrative review requests must be entered into the system within two (2) business days from date of receipt; d). Provide inquiry capabilities for citations In the administrative review process; e). Print and mail (by first class mail) all administrative review result letters; f). Notify the City of citations that have been successfully dismissed through the review process and have had payments processed, (or are cancelled) so the City can issue a refund; g). File and store all source documents for ease of retrieval; h). Provlde staff to respond to telephone Inquiries regarding how to contest a violation, determine outstanding penalty amounts or delinquent fees, identify time frames, and any other pertinent information in order to contest a citation by mail or in-person; I). Link the hearing freaking system to the citation database in real time to obtain citation Information such as citation Issue date, delinquent date, amount owed, and other citations open with the same license plate numbers; j), Ensure that the computer system is capable of recording data and comments for historical background, suspending action while appeals are under investigation, sort citations by type of violation and/or defense, record case decisions, generate letters and use customized liability reason codes; k), Provide monthly report of review results by citation number. 8). Administrative Hearings. a). Provide tracking and correspondence for all administrative hearing requests; b). Vendor shall enter and maintain a database of all administrative hearing requests, showing current status of each request. System must be Integrated with parking citation Issuance and processing system, Ensure a result is recelved for each correspondence; c). Schedule Administrative hearings and forward schedule to the City; d). Print and mail (by first class mail) customized hearing notification letters for the City; e), Respond to inquiries for the City and the public regarding date of hearing, malling data, location of hearing and directions to hearing location; f). Re -send letters should room or dale changes be necessary; g). The Hearing Officer will forward results of Administrative Hearing to the City and to the Vendor; h). Letters regarding the results of Administrative Hearings will be malled by the Vendor; City of Santa Ana — Automated Parking Cltatlon and Processing Services (RFP 16-116) IM -14 1), When a refund is appropriate, the Vendor shall provide Information to the City, The City will issue the refund; I). Provide monthly report of review results by oltation number, 9), Payment Processing. a). Provide a separate Post office Box for the City where payments, administrative review correspondence, and other documents are to be malted; b). Provide mall pick-up from post office at least once per day; 0), Sort and batch all incoming mail by postmark date for payment posting; d), Enter and process payments received within one (1) business day, including opening all mall received, verifying payment amounts, updating computer system, and making dally bank deposits in the City's designated bank account; e). Conduct daily reconciliation of all payments entered with bank deposits; f), Provide dally reporting of bank deposits made for the City; g), File and store all source documents in an easily retrievable system; h). Track rebilling on partial payments, checks returned for Insufficient funds upon notification from the City, vehicle change of ownership, and leased vehicle Information; 1). Provide for payment by credit card (Visa and MasterCard) and be capable of securing authorization from the banking institution. Payments made by credit card are to be Immediately updated in the database In real time. Payments will be made by automated telephone system; j). The Vendor will have the ability to accept payments via the Internet. 10). City's Online payments. a). The vendor must also accept data from the City's cashiering system Data would be provided electronically on a dally basis. Information on the system Is provided below. These specifications are not all inclusive, but are Intended for the purpose of giving the Vendor a general idea of the City's system. Specific details will be provided after an agreement has been entered. B. User Interface 1), The user interface includes payment information as well as parking citation specific Information, it will include the fields listed below, including the validations for each field. Ticket Information: Citation number - all City tickets begin with "PC" and have a unique 6 digit Identifier that follows, Date - the date the citation was Issued • Amount - the amount of the parking ticket. Vehicle; • Vehicle License number • State (state of vehicle's license plate) - in two letter format. Contact Information; • Name • Address • Phone - should include an input mask or validation that does not allow users to enter an invalid number. ._ mauncmmw. �+rnwv ....m�.samvamereamxw City of uanta Anea nufomated Parlting Citation and Pracessinp Services (RFP 16-110) 2'5G-15 Payment Informatlon., Credit Card Type , Choices are VISA or MasterCard, Credit Card number + Expiration Date + Name on Card C. Web Server Configuration 1,)The City secured server has the following specifications: Compaq ProLlant DL380 GS 2 Intel Xeon 6X00 Dual Core Processors 4GB RAM Windows 200R2 Server Standard IIS 6 MS SOL 2008 server SSL 128 —bit enabled V. Credit Card Authorization 1). The City uses a credit card authorization solution from Cyber Cash. The product Is called 1.0, Verify. C. Correspondence Processing 1), All correspondence shall be processed within two (2) business days from date of receipt; 2), Obtain approval from the City on all standard forms, notices of delinquent violation, and correspondence, The Vendor must ensure that all forms conform to applicable State and Federal laws, 3.). Submit copies of standard forms, notices of delinquent violation, and other types of standard correspondence with bid proposal. P. Reporting 1). The Vendor shall be responsible for providing regular daily, weekly and monthly reports on demand to the issuing agency within three working days of the report being requested. 2), Although other reports may be required, the vendor shall be capable, at a minimum, of producing reports relating to scofflaws, open citations, bank deposits and citation dispositions, The vendor must be capable of delivering these reports to the Police Department on an agreed schedule. 3). The Vendor shall provide duplicate or replacement reports at no additional cost to the city. 4), Copies of dilation abstracts shall be provided to violators at no cost upon request. 6), The following Vendor reports are required monthly; Repeal offender list (5 or more), citation analysis by officer, citation analysis by violation, citation status report, out of state status, out of state revenue, hot sheet, distribution revenue summary, violation statistics, violation analysis by officer, detail citation report by officer, monthly citation statistics, yearly statistics of Issuance, citation summary report, ball payment summary report, DMV citation cleared with bail (collected), DMV citations cleared without ball (not collected), DMV registration hold listing, Refunds report. Provide an online report generation capability; 6). Provide weekly license plate number to citation number cross reference reports sorted by license and dilation, Provide additional reports monthly as may be needed by management or a Lid ltd rs; 7). Submit a sample of the standard reports used with bid proposal. G, Toll -Free Telephone Service 1), Provide a toll-free telephone number for Inquiries and credit card payments; 2), Operate the toll-free telephone service 24 hours a day, seven days a week, 365 days per Me Ana — Automated Parking Clteition 255-16 year, for the 50 states, Canada, and Mexico; 3), Ensure that customer service representatives are available to provide instructions and Information on general parking policies, procedures and administrative adjudication procedures for the City. At least one customer servlce representative shall be available for Spanish translation during regular business hours Monday through Friday. H. Automated Voice Response System 1). Provide a customized recorded voice response system in English and Spanish to convey Information on: a). How to pay and contest violations; b).Registratlon violation information; o),Mail address Information; d). Ensure that the automated telephone system Is capable of receiving a minimum of 500 Incoming calls per month. Planned downtime must be between midnight and 4 a. m.; Custom Notices and Letters 1). The Vendor shall provide at no extra cost: The necessary postage, correspondence and stock forms to meet all applicable State and local laws and regulations for citation processing and adjudication, 2). Vendor will provide samples of mailing and return envelopes with proposal; 3). Ensure that Delinquent Notices are generated at least one business day prior to becoming delinquent. Delinquent Notices generated will be mailed at least once a week by first class mall to registered owners; 4). Ensure that returned check notices are mailed by first class mail to individuals immediately upon notlfioation from the City that a check has been returned for non-payment, The notices will state the amount of original penalty, delinquent amount, and the appropriate returned check fee; 5). Ensure that Drive Away Notices are mailed by first class mall to registered owners of vehicles that drive away from the officer at citation Issuance time as required by the California Vehicle Code. Notices must be mailed no later than 15 days from the data of the original citation to the registered owner; 6). Ensure that partial Payment Notices are sent by first class mall to those who do not pay the full penalty amount. The notice should indicate the amount that was paid and the balance that Is due; 7). Communicate with violators in a timely manner by mall In response to correspondence such as incomplete registration, citation, or payment information. J. Online Inquiry Access 1). Design and Implement an online Inquiry system to allow access to the citation database by designated City employees; 2).The on-line inquiry system must provide real time access to all citation Information including registered owner Information, payment information, and administrative adjudication history, K. Support 1). Provide staff for all aspects of processing parking citations, Including any changes related to new Federal, State, or local legislation, Days and hours of operation shall be consistent with normal office hours Monday — Friday unless otherwise approved. 2). Provide on-going support to the City to access and interface with the parking citation database; 3). Vendor shall provide user's manual which includes step-by-step Instructions for accessing computer database information and a list and description of any and all codes used In screens accessed by the issuing agency; 4). Provide technical support and troubleshooting assistance for any and all hardware and software used by the City. Technical support and assistance must be available between City of Sania Ana —Automated Parking Clfallon and Prncessing Services (RFP 16-116) ZSG-17 the hours of 7;00 a,m, and 6;00 p,m, Monday through Friday, except City recognized holidays. L). Database Backup & Off-site Security 1), Ensure that all systems are backed up daily to ensure safety of data in the event of a power outage or natural disaster; 2). Transfer and store off-site all backups of data for disaster recovery, M), Interagency Intercept Program (Franchise Tax Board) 1). Vendar must be able to Interface with the Interagency Intercept Program (FTE) for collection of delinquent fees. N), Contract Requirements 1), No portion of the contract shall be permitted to be subcontracted to another private or public agency without express written approval from the City, Vendors must disclose the nature of work being subcontracted and the name of the private or public agency; 2). All processing functions performed shall be completed within two business days after receipt from the agency; 3). The Vendor shall comply with all roqulremants of the State of California Vehicle Code (CVC) In regard to processing and ad]udioatlon of citation records sent by the City; 4). The Vendor shall be required to send notices to lessees of cited vehicles when provided with the Information provided on "Certificate of Non -Ownership"; 5). The Vendor shall provide necessary on-site training and support for City staff, to retrieve information stored In the computer system; N). Other 1). Attend City meetings as needed or when requested at Vendor's expense. This Includes but not limited to, transportation, lodging, meals, and staff time; 2). Vendor shall comply with California Vehicle Code Section 40200.3 (b), regarding the Annual Report. The City may audit the report at Its own expense. 3). Work with Traffic Engineering to process and track Issued parking permits. 4), Ensure that no information associated with the notice of parking violation system is disclosed to anyone other than the City for any purpose other than the colleotlon of penalties, fines and fees, The Vendorwill ensure compliance with appropriate State and Federal regulations pertaining to the confidentiality of Information, I!, IMPLEMENTATION City staff shall have the right to modify, reduce, or delete the services as needed by City. Submit a plan to transfer data from the existing Vendor. City of Santa Ana - Automated Parking Citation and Processing Servlces (RFP 16-116) 2tG4_�18 Addendum to Exhibit A 3caae of Services j I. DESCRIPTION AND SCOPE OF WORK The City of Santa Ana is issuing this Request for Proposals (RFP) for Automated Parking Citation and Processing Services, The City desires an integrated software and hardware service solution to parking cltatlon and payment processing, The preferred solution will Include hand. held computers for ticket issuance and data download with real-time, online access for public safety officers, the City's Parking Citation Coordinator and Finance Staff to citation information and citation status on a user-friendly reporting structure. A complete package of citation Issuance, processing, collection, reporting, hardware and software maintenance is required. The program and service must also accept and support hand-written citation forms, The Vendor shall coordinate Its efforts with the City of Santa Ana Police Department, City of Santa Ana Finance Department, Orange County Court System and other agencies affected by the project. The Vendor will be expected to work closely with the Police Department's Traffic Division, Information Systems Division, and Finance Department to ensure compatibility and uniformity, A. Software Specifications 1). Vendors must provide a software solution for electronic Issuance of citations. Software must be installed on a handheld computer / mobile device and Incorporate the following features: a). Citation must be capable of printing on a 2"45" thermal printer (brand name to be determined later). Vendor must recommend a printer compatible with their software product. b). Citation software must support touchscreer functionality to enhance the usability of the system. c). Citation software must support taking photographs and recording them along with the citation record. d). The vendor's solution must include an interface capable of exporting citation data to the Police Department's records management system currently being Implemented, InformRMS by TriTech Software Systems. The interface must support exporting any and all fields captured as part of a citation record. The interface will support common data transfer methodologies (e,g, XML, CSV, web servioes, FTP, etc,). 25G-19 (. 2)Addendum to (Exhibit A Scope of Services N. Other 5). A system interface exists between the City of Santa Ana's current parking citation processing vendor and the City's citywide System Innovators, a division of N. Harris Computers' iNovah cashiering system (iNovah Solution) The purpose of this interface is to facilitate the City's ability to accept payments for parking citations at City Hall, or via the L.D. Systems Kiosk Solution, that update both the iNovah Solution and the City's parking citation processing vendor's solution, A new system interface between Data Ticket Inc.'s Data Ticket Solution and the iNovah Solution is required to replace the existing functionality, The desired technology to be used is web services so the iNovah Solution and Data Ticket Solution are updated in real-time to best serve the City and the City's citation recipients. Data Ticket staff will work collaboratively with System Innovators iNovah staff to ensure a new system interface is accomplished in a timely manner. O. Additional Services 1.) Extra Work CITY shall have the right at any time during the term of this Agreement and any extension thereto, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. The term "work" shall include services provided to Data Ticket as prime contractors by any City authorized subcontractor. 2.) Change Order No extra work may be undertaken unless a written "Change Order" is first given by the City to Data Ticket, incorporating therein any material adjustment in the contract and/or the time to perform this Agreement, which said adjustments are subject to the written approval of Data Ticket. The terms and cost of any Change Order between the City and Data Ticket shall be agreed to by mutual consent. 25G-20 Exhibit "B" 25G-21 REQUEST R. PROPOSALS • r • , .T l C • AND PROCESSING RFP 16.116 DATA TICKET, INC. Brook Westcott, Chief Operating Officer 4600 Campus Drive, Suite 200 Newport Beach, CA 92660 Phone; (949) 752.6937, ext. 337 • Fax: (949) 752.6033 25G-22 Data Ticket, Inc, Newport Beach, CA 0; 949 7552-6937; F; 949 762-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services CONFIDENTIAL INFORMATION DISCLAIMER This proposal contains certain confidential and valuable Information in the form of Ideas, know-how, concepts, processes, plans and trade secrets that belong to Data Ticket, Inc. In accordance with the California Public Records Act, this confidential Information shall not be disclosed outside the City and shall not be duplicated, used, or disclosed in whole or In part for any purpose except in the procurement process. Confidential Information contained in this document is noted on each applicable page or image, Serious and irreparable competitive disadvantage in future procurements could result from the release of any confidential information contained In this proposal. Please notify us Immediately, in writing If there is a request for disclosure of any confidential information so that Data Ticket will have an opportunity to participate in any disclosure discussions. The following data, furnished in connection with this solicitation, shall not be disclosed except to those who are directly Involved with the evaluation within the City and shall not be duplicated, used or disclosed in whole or in part for any purpose other than to evaluate the proposal provided. If a contract is awarded to this offer or in connection with the submission of this data, the City shall have the right to duplicate, use or disclose the data to the extent provided in the contract, This restriction does not limit the City's right to use information contained in the data, unless it is obtained under proper authorization from another source without restriction, 25G-23 Date Ticket, Inc. Newport Beach, CA 0: 949 752-6937, F: 049 752-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services TABLE OF CONTENTS DESCRIPTION SECTION STATEMENT OF QUALIFICATIONS A 1, Cover Letter 2, Finn and Personnel Experience 3. Implementation Plan 4. Financial Responsibility (Capacity) 5. Proposal Deposit EXHIBIT C -- PROPOSERS STATEMENT AND PROPOSAL ITEM PRICING B EXHIBIT D — REFERENCES C EXHIBIT E — PROPOSERS STATEMENT D EXHIBIT F — CERTIFICATION OF NONDISCRIMINATION BY CONTRACTOR E EXHIBIT G — RESPONSIBLE PROPOSER— SUPPLEMENTAL F QUESTIONNAIRE EXHIBIT H — NONCOLLUSION AFFIDAVIT G EXHIBIT I — SAMPLE ADDITIONAL INSURED ENDORSEMENT FOR H COMMERCIAL GENERAL LIABILITY POLICY ADDENDA ACKNOWLEDGMENT I 25G-24 City of Santa Ana RFP 16-116 Attn: Corporal Matt Wharton, Project Coordinator Attm Commander Enrique Esparza Santa Ana Police Department 20 Civic Center Plaza Santa Ana, CA 92702 October 26, 2016 Dear Selection Committee: Data Ticket, Inc, appreciates the opportunity to respond to the Request for Proposal for Automated Parking Citation and Processing Services for the City of Santa Ana. Data Ticket has been processing parking citations for over 27 years and processes for over 250 clients, nationwide. Why is now the right time to select Data Ticket as the City's vendor? We provide our Clients with the highest level of customer service, making ourselves available 24/7 to our Clients Based on figures provided by the City, the G1 is curront collection rate Is This is absurdly low and completely unacceptable We are the most stable vendor in the industry with little to no staff turnover, no change in ownership, no lawsuits, and a strong leadership team that provides over 100 years of parking experience We guarantee we will outperform all other vendors by providing focused citation processing services that are effective and efficient We provide real-time CA registered owner Information, holds and release to our Clients; no other vendor does this; we also provide real-time out of state registered owner Information via N4ETs and via direct connections to out of state DMVs Our costs are fair and transparent; we never charge our Clients for a conversion effort Over the course of the last 10 years, Data Ticket's service offerings have grown tremendously. With each enhancement provided and each new service offering available, we have consistently offered our clients world class service, technology and processing without any increase in cost. The individual authorized to negotiate and bind the firm contractually to all statements in this proposal is Brook Westcott, Chief Operating Officer. Questions regarding this proposal should be directed to Brook Westcott at Data Ticket's corporate headquarters: 4600 Campus Drive i Newport Beach, CA 92660 1 Office: 949-752.6937, ext. 337 We believe after review of the enclosed proposal, you will agree that Data Ticket, Inc. is the most qualified partner to provide the professional, focused service necessary for superior parking citation processing and collections. This proposal shall remain valid for 180 days from the REP closing date. Best Regards, Brook Westcott Chief Operating Officer 25G-25 11Page i Data Ticket, Inc. City of Santa Ana Newport Beach, CA Request for Proposals for Automated O: 94.9 752-6937; F: 949 752-6083 Parking Citation and Processing Services 2. Firm and Perronnei Experience Data Ticket provides the highest level of services to each of our clients. We have adequately staffed each department to accommodate each and every client's needs. We do not share resources across departments; rather we have hired and maintain each department such that there is no need to share resources among departments; however personnel are cross -trained to ensure our entire staff' Is well versed in the entire citation processing lifecycle. City Personnel will have access to all Managers, as well as individuals within each Department. A Project Manager will be the City's point person for all implementation needs. In addition, Individual and group email$ as well as direct phone lines will be provided to City Personnel to ensure Data Ticket Is always accessible. Finally cell numbers for specific individuals will be provided to Clty Personnel should the need for atter-hours assistance ever be required. At a hIah-Ievei. roanon elbiI tV mmnnnSf fha'rnlln MMM Intl it] lei I Id I. h�� k— -­ :A—A a,..i Inds ldual,; lgritrfenk of"i Heather Nowlan, Senior Client t setup end maintenance Services Manager, Project Managerl and on-going User Training for the City of Santa Ana espondence Review ndance at City Council and Administrator Setup Questions Fen Brook Westcotf, Chief Operating versight Officer & Supplemental Project ncement Prloritization Manager for the City of Santa Ana unting Oversight dance at City Council Meetings hly Performance Review ction Rate Statistics / Financial Analysis nal Oversight of Operational Processes Heather Nowlan, Director of Client Services, will be the individual responsible for working directly with the City on a day to day basis. Specifically, she will be responsible for processing any request the City may have, Including providing each of the City's Personnel with unique usernames and passwords that will provide access to the Citation Processing System at the appropriate, requested level. In addition, Heather will be responsible for providing all user training with regard to the Citation Processing System Software. This training will be performed in person, via the Internet and over the phone. Finally, Heather will be responsible for reviewing all noticing and correspondence to be sent on behalf of the City. Brook Westcott, Chief Operating Officer, will be responsible for ensuring the IT, Accounting, PTB, Noticing and DMV Functions work properly for the City. She will also be responsible for all financial analysis required by the City. In addition, Brook will be responsible for contractual oversight. On the following page, we have provided the City with a high level organization chart for Date Ticket, All of the individuals identified on the chart work in the Newport Beach, California office and each of the Individuals Identlfled in the organization chart provided below will be made available to City Personnel throughout the life of the contract. 2j Page 25G-26 Data Ticket, Inc, City of Santa Ana Newport Beach, CA Request for Proposals for Automated O; 949 752.6937; F: 949 752.6033 Parking Citation and Processing Services Data Ticket makes available to our Clients our Data Entry Manager and Data Entry Lead, our Customer Service Manager, cur complete Adjudication Department, our complete Operations Department, our Complete Accounting Department and our complete IT Department. Of course, should the City prefer to work through a single point of oontact and a supplemental contact, we can accommodate that as well, Our goal In working with each Client is to fit their Individual needs, We do not aver axnr±rt n MIAnb a,.. -1.a 6- Nana t uebsgsorbusiness moaei. unotiph.' YearsafMar'orke Flemkn Overall contract mane among Ek erlance23 Years 3 Years Brook Westcott ting Contract management, kT oversight, 12 YearsAccounting 7he oversight, enhancement managemant, City Council attendanceProject Manager Heather Nowlan ces Implementation management, training 7 Yearscoordination Kay Singh & report generation Dally aporational assistance, including 20 Years Adjudication citation adjustments, DMV access, real-time DMV lookups, etc, Dally adjudication assistance, Hearing Office Scheduling and 15t Level Administrative Review dispositions Joan Conat Data Ent Dai! data ant assistance 23 Years Mariano Hernandez Accounting Dail accountin /ban in assistance 6 Years Wanda Stone Programming Dally assistance with Ehe handheld solution 9 Years chosen Jose Sandoval Customer Daily customer sorvice assistance 6 Years Service Finally, Data Ticket does not intend to use any contractors or sub -contractors to perform any of the responsibilities identified In the City's RFP, 3. Implementation Plan Our approach to citation processing is continually evolving. We have been processing parking citations for 27 years, We use our experience and expertise to continually improve our software and our services so that our partnerships with our Clients continue to evolve and grow, Our Solution is 100% web -based. City Personnel will have access to the Solution via unique usernames and password, Access to the Solution is provided at the webpage level which provides the City with the greatest amount of flexibility regarding individual user access level, In addition, specific City Personnel will have the ability to act as an Administrator of the Solution, Proprietary and Confidential to Data Ticket, Inc. 3 .P a''a 25G-27 Data Ticket, Inc, Newport Beach, CA C: 949 752-6937; F: 949 752-6038 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services maintaining user access levels for all City Personnel, Of course, if the City prefers for Data Ticket to maintain user access levels, our Clients Services Department will be happy to fulfill that role, During the life of any contract, we believe It is our responsibility to benefit our Clients technically by providing regular enhancements. Our software is living software, It Is provided as a Software as a Service (SaaS) model, Because our Clients do not own the software, it is Data Ticket's responsibility to enhance that software regularly, thereby providing our clients with new, forward - thinking functionality, Citation Management gnoroach Data Ticket's Citation Management Solution is available to our clients via a 100% web -based selutlon. We are a leader in the Industry with regard to our customer service, Industry knowledge and willingness to partner on every level with our Clients. Since we have the benefit of processing for many agencies we have the access and ability to observe and understand "best practices" In the industry and to share those best practices with our Clients, We partner 100% with our Clients to meet and exceed their needs and we expect our Clients to rely on us for our expertise. Data Ticket offers several models to meet the City's Citation Management Processing requirements. These models range from Data Ticket performing all services In-house to the City performing all services In-house to a combination of sharing or dividing tasks and services. Based on the City's RFP and the City's response to the questions asked, we understand the City wishes to provide the highest level of customer service for all types of customers while sharing in the daily responsibilities. Based on this Information, we have provided what we believe to be best practices that will provide the maximum benefit for the City's Customers and Staff, The table below represents our suggestion only of how we believa the daily citation processing and collections responsibilities can be shared to maximize the efficiency of the process, Again, all services can be reviewed individually and the City, Data Ticket or a combination of both can perform each service. The bolded Items indicate who will take the primary responsibility for the Items below: FtaitCtiorrplity, Ccty'Po sonnei.. Data T,foket Performs. Performs Data Entry of Manually Written Citations No Yes Automated Electronic Transmission of Citations Yes NA Real-time automated re istered owner retrieval Nc Yes Generation rintin and sendin notices No 'yes View photos, videos and voice recordings of citations in Yes Yes the format In which theare sent Automated Ball F'scalatlon No Yes Automated management of the FTB and Delinqueni No Yes Processes Place citations an adjudication holds and scan all Yes Yes supportin documentation Enter 16 Level Dispositions Yes Yes Send all Adjudication Letters No Yes Schedule 2" Level Hearings Yes Yes Enter notes to be viewed by the City and Data Ticket _ Yes Yes Handle Customer Service, including IVR and live, bi- No Yes lingual customer service phone lines Proprietary and Confidential to Data Ticket, Ino. 4 1 P a g e 25G-28 Data Ticket, Inc. Newport Beach, CA 0: 949 7526937; F: 949 762-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services doh -Level Plan Data "Picket Is well versed In both the Implementation and conversion efforts associated with parking nttatlons. We believe we ere the only vendor who Is well equipped to handle the processing and collection requirements set forth in the City's RFP. We will convert all of the City's data at no cost to the City. Prior to an Implementation, Data Ticket recommends a series of meetings to define when each notice will be sent, when each penalty will be added, and all other business rules that will be adhered to through the citation processing Iffecycle, Our Solution will use this Information to process the City's citations smoothly and effectively with as little human Intervention as possible. A high level functional Implementation plan has been provided below that outlines the tasks the Cit and Data Ticket's PrOlect manstiers should revlewriot to m I I Task amemation. ni Tilm®.gameData Ticket is selected as the vendor of choice for the City Week t Cit 's citation rocessin and collection servicesContract f�i reviews are complete and the contract Is signed & Data Week t and a roved by City Council ket Termination letter is sent to prior vendor outlining a test The City & Data _ Week 1 conversion file and a final conversion file timeline Ticket Perform introductions of the key Individuals at both the The City & Data Was1 City of Santa Ana and Data Ticket, including: Ticket Accounting- 0 erations - Data Ent -A peals Provide and submit DMV pare code reassignment The City & Dafa Week 1 paperwork Ticked Provide ORI or obtain S -CRI Paperwork The Cit Week 2 Discuss and agree on handheld solution options The City & Data Weeks 1 - Provide the following to Data Ticket: Ticket The City & Data 2 Week 1 Bail schedule & penalty increments - Officer list Ticket OR City's Location list -Copy of a manually written citatlan - oxistin9 vendor & .Copy of an electronic citation Date Ticket Approve Parking Citation forms The City & Data Weak 2 Review the Invoicing practices set forth by Data Ticket Ticket The City & Data Week 3 Review the City's standards for Customer Servlca Ticket The City & bate Week 3 Ticket Prior vendor to provide Data Ticket with sample Prior Vendor _ Weok 3 conversion file and definitions Review file and seek clarification on outstanding Data Ticket Waslt 3 uestions; execute test conversion effort Weekly conference calls to discuss progress of account - The City -& Data Weekly sato Ticket ReMW available reports for month-end and Invoioe The City.& Data 157Invofce details Ticket Month Receive final conversion file a Ticket Weak 6 Signcff on conversion data �Th.T�Jlt,&Dataoeks 6- lcket 7 Lary Pra rie ., y and ..._.0 . Proprietary Confidential to Data Ticket, Inc. 25G-29 51Pa,rye Data Ticket, Inc. Newport Beach, CA C: 949 762-6937; F: 949 762-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services Data Ticket's IT department expertly converts date from other vendors to our 100% web -based system without issue. We will work with the City's current vendor to convert the data into our system in a timely manner. Trainlna Training of City Staff is extremely important In order to gain full acceptance of the Solution. We have provided a high level over -view of the onsite training at the City's location for all users of the Solution, This overview will be customized to meet the City's exact needs. Our Project Manager and the City's designated representative will agree on the logistics required of the training to be performed. Specifically, we will identify the number of individuals who will require training, the types or groups of individuals who will require training and the type of tralning required. For example, Finance may require training on a subset of the reports offered, while the Officers may require training on a different subset of the reports offered. In addition to the types of training offered, we will work with City Staff to determine which type(s) of training are required: (i.e. in-person, Internet, user manual or specialized), Data Ticket will rely on the City's staff to support the training efforts by: ■P Aiding the Data Ticket Project Manager in defining the number of and types of training sessions to be held Mf Aiding the Data Ticket Project Manager in defining the Individuals for whom train Ing wlII be performed Providing feedback on each training session Once the initial training plan Is mapped, we will begin to execute the training sessions, V0 6g or66 oafTra ni:n Duraflon Pormat Supervisors Ove"'Iew of w 2 hours In Person Website usage forcltaticn processing Payment acceptance Receipt generation Keying of manual citations Payment Plan processes NSF processes Credit card acceptance Reduction of fees Void/Dismissal of citations Partial payment acceptance, If applicable Refund processing Re ort Lenerallon Cashiers / Front Overvlew of,, 2 hours In Person Office Staff Website usage for citation processing Acceptance of payments Noticing/Penalty timeline review Handicap citation review Adjudication system review Report generation Proprietary and Confidential to Data Tlaket, Inc. 25G-30 61Paga Data Ticket, Inc, Newport Beach, CA C, 949 752.6937; F: 949 752-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services Tratntrn 4 �rw �u T a of Tratrrfng 10arratparr Farm t Customer Service Ovorvlew of° 2 hours ' In Person (Adjudicakion Websft0 usage for citation processing Acceptance of payments Noticing/Penalty timeline review Handicap citation review Adjudlcatlon system review Report generation Generation of judgment Generation of disposition letters A aal Schedulin Enforcement Overview of.° - 3 hours In Person Usage of the handheld units Usage of the soofflaw, reports Usage of the permit reports Chalking capabilities Report generation Usage of meter messages Transfer of files Website use a for permit processing In order to provide the City with a detailed work plan including action items, responsibilities, deliverables and dependencies, we have provided a Microsoft Project Implementation Plan that has been collapsed to provide City Personnel with a high level understanding of the timing of all aspects of the Implementation. This work plan will help guide City Personnel and Data Ticket to a successfully implementation in less than 8 weeks. Data Ticket will be responsible for maintaining the work plan and for ensuring the Implementation is kept on track. The work plan has been provided on the following page for the City's review. You will note this work plan has been collapsed so that not all details are provided. The dates provided In this work plan have dependencies bull(in such that if tasks are completed faster than the allotted time, the entire plan will shift to an earner completion date. Data Ticket has converted citations from the City's current vendor and is well versed in the conversion of data as well as the entire implementation process. We will move as quickly as the City allows such that the entlre process could be completed In as little as 3 weeks or could take up to under the 8 weeks identified. Proprietary and Confidential to Date Ticket, Inc. 25G-31 7ipage y� 25G-32 S l P� ASID N.y (cN+.{. [M. gN�m'[�N:�i ryryN N�m^,ry ryrymhLNh. yYM1hh meq+ PhM FF'F'HNOW' S.a� yyp�p''yyjj jjyy���QjQj��yjjy CC��Spp'�••5�� ��y�py�pypy�p'a SS'.7i.° �$5 EEpp 3A :$i°F li��g'. j 6 p yyyg h .� E P°�2 gg 5 $. Cp �E �3 E a 3 R ll a Alai, a� E zp 6g6 'S@U � din9°'ryg °%!3 pM ♦ i ♦g�g 8 CV1 388E u3 W -S V F .V 25G-32 S Data Ticket, Inc. Newport Beach, CA 0: 949 752.6937; F: 949 752-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services Scope of Services Data Ticket has read and understands Exhibit A — Scope of Services. We also understand the City has requested we stick with a 20 page maximum In this section. To meet that requirement, we formally accept the City's Scope of Services with no exception. Below and on the following pages we have pointed out enhancements to the City's Scope of Services that we will provide as well as areas of additional services offered. S2rvice Differentiators Data Ticket offers a unique set of processing capabilities that set us apart from our competitors end provides our Clients with an effective, efficient process for managing parking citations: 0 Access to the Solution - Data Ticket's Citation Management Solution is 100% web based, The entire system is accessible using a username and password. City Personnel with access to the Internet and a web browser may access the system using a unique username and password that will be setup during the implementation phase. In the event new individuals require access to the system or individuals with existing access need their access level modified, Data Ticket will update the access levels the same day the request is made at no cost to the City or the City will have the option of having a Client Administrator who is a member of City Personnel who will have the ability to manage the City's users online. This feature is available through the "Maintenance" menu Item on our website and can be seen on the following page in the screen shot provided. Access to our Citation Management Solution is granted by a citation number, notice number, vehicle license number and state, name, or VIN. Data displayed once a valid search criterion Is used is: X All citation level information that was entered on the citation, including VIN ?t All photographs, videos and voice recordings taken at the time of the citation issuance and transmitted to Date Ticket Current status of the citation, provided in bolded text a8 DMV inquiry date and hold and release information and dates, including registered owner information, with address and registration expiration date X Delinquent notice history, including date sent, date due, address sent to, registered owner, make of the vehicle, and amount due X Adjudication history, including date the citation was placed on a review and hearing hold, date hearing was scheduled for, date hearing schedule letter was sent, judgment, date judgment was entered, date judgment letter was sent, disposition Information, hearing officer name, complete appeal description, images attached as part of the adjudication process and a complete description of the reason for appeal If the appellant appealed online Payment information, including payment type, payment received date, check date, check number, deposit date, payment location, amount paid, and returned check date or credit card charge -back date Penalty history including penalty date, penalty amount Registered owner information as provided by DMV, including registration date and any names listed on the registration, VIN, make and model All phone notes as entered by our customer service representatives and any other personnel who have a username and password X The number of citations for each registered owner and the number of citation issued for each state / plate ,it Vehicle registration history X A complete audit trail of the citation, including a usemame and date for every transaction 9i Page 25G-33 Data Ticket, Inc. City of Santa Ana Newport Beach, CA Request for Proposals for Automated O: 949 752-6937; P: 949 752.6033 Parking Citation and Processing Services X Citation simulation for reproduction and printing at the City X Scanned images related to Adjudication, payment backup and other matters The Citation Detail webpage screenshot provided on the next page provides the user with real-time information regarding the citation, including all the items mentioned above. In addition to those items, you will see many date fields are underlined. These fields are actually hyperlinked so that by clicking on them the user will be taken to a pop-up that details more information about the specific data. PROCESSING CENTER cknsa .�Nt ai/gU1lQ PAW U, f.11 G+mlaminfxara7on' .� _ _' um�P°^xt&6�t EY.UroL.m4v . . C -IS WM 5 me tl'MYN .. t«xayuz ueo-mt Yt6U 1..+o�si^Pt .z:,ml[kg,pt a.,zs_ x-o.,:1mc+: nsm P[ANnfr eher€a; rnFggsi�a>. ::asu,ea!rs;r�s:el � g, .. MP+A1,NrAM�i ; e ` brltb5 xw u {is 'p 1 4�9v Po+a9a _ _ n ra. Cexe. c.x.. v _awvie u„n� USG X,p. kk:`p,k _,xtu. {iiNn Oautdn t:ia1C4. I14fiD 64Di%#p9 E[d£ASC sommwc av-tln4 YWiY05rnY 4Y eXg3;p,iC, 4 dPxim�+w, liaw'6d:r�/.' Y`AtaYAk f (i (UIk1P. 'S `... {hlMeS,P&K2MPAdN+tk IG�� Da(ia5 � r[zr. A.IX cin. ._b_ I-01@tlffi NI£I }f'CFPI'Ri U6. Lp pVR9l b16 4 Nenia!„1ry -I nl 11 St P9YRxmX tuMmalmd�; _ - eL c .<ti.N P !4N the i -r b , aJo -m1c s sa.a x arfi+ x passu h ?V e:I tb (ro¢trYa vXxa F-1131 y.ryxvt!(% Iw ar o.xme atMIMs ,xw.ws.k ttia .. MP NE t. ANA ., Grs {xn,�ors ra,.auem a!+nru ra„».0 ' 1a1Y:o1s xo:wm.aq, la o•fr xx v:an o-aen<a x:x,.rtv,arx a+n„ur :xna•`rirs orrv:arm,"�.em ex Y„pn o-{va¢pra xwce mn m. ,�,a,m a:raa o,,.arcom,mr ' opYL31i amM lu Ct flhWEy CmmU'n iC ryn[eMt avbfrxbik FaP*MtTn{f trtime pm.wsq.¢x eqe 91fab.Fitr n: M, 6i0NxOrYrc Uv.ment UI{ati$UIO Yi.Flentt:( 6:Igxi 4ilix atnneq fi�VeRPIE yea leaury m,w lqq_ firms M b ¢W N fL9 vrRm CaMM.i H As you can see, the following fields are hyperlinked: .9 This person: $0.00: When clicked, this field displays a pop-up box that lists ail citations issued to this person, the date of the citation, the plate to which the citation was issued (which may be different from the plate on the current citation), and the amount owed on the citation. X This plate: $0.00: When clicked, this field displays a pop-up box that lists all citations issued to this license plate, the date of the citation, the registered owner to which the citation was issued (which may be different from the RO on the current citation), and the amount owed on the citation. X Responsible Parking History: When clicked, this field displays a pop-up box that lists prior registered owners, responsible parties, lessees and renters associated with the citation. X Vehicle History: When clicked, this field displays a pop-up box that lists the vehicle information provided on the citation and the vehicle Information returned from the appropriate DMV. X Payment Plan: When clicked, this feature provides the ability for the user to enter a payment plan for the citation Proprietary and Confidential to Data Ticket, Inc, 10 1 P a g e 25G-34 Data Ticket, Inc. Newport Beach, CA 0: 949 752-6937: F: 949 752.6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services X Notice History: When clicked, this field displays anew tab that displays the front and back of the actual notice sent to the registered owner. A copy of each notice sent is associated with each citation so City Personnel never need to request a copy of a letter sent on its behalf In addition to the above-mentioned fields, our Solution also displays all Adjudication Letters via hyperlinks so City Personnel can see the actual disposition letters and hearing schedule letters sent on its behalf. �! Data Entry of Handwritten Citations — Data Ticket electronically scans all hand written citations so they can be easily located should our clients ever request a copy, This exceeds the City's 2 year requirement for storing such citations. rb Automated Transfer I Upload — Our Solution utilizes either a data plan to transmit citations or the City's secure wi•fi. In either case, citations and their corresponding videos, voice recordings and pictures are uploaded automatically without any human intervention on Data Ticket's side and, depending on the method of transmission selected by the City, with or without the Officer's intervention. ♦ Registered Owner Name Retrieval -- Our ability to obtain RO information is performed via a real-time connection with CA DMV. In addition, we make a minimum of 5 attempts to obtain a registered owner from all DMVs. We make multiple attempts because if a registered owner is not obtained, the City is left to hope the registered owner pays off the windshield. Because no notices can be sent without the registered owner Information, this leaves little opportunity for collections. Your current vendor does not offer this service. Out of State Registered Owner Retrieval from State DMV — In 2012, Data Ticket decided to provide an additional level of service to our Clients by obtaining a strategic partner status with NLETs. NLETs provides Data Ticket with out of state registered owner Information for those Clients that have an FBI assigned ORI or S -ORI, your current vendor does not offer this service. DMV Registration Holds I Releases — Our ability to place CA DMV Holds and Releases is performed via real-time connections. in addition, Data Ticket makes a minimum of 5 attempts to place a DMV Hold or Release on a California DMV Registration, which increases collection rates for those individuals who will pay for their citation when registering their vehicles. Your current vendor does not offer this service. 0$ Administrative Hearings — Data Ticket provides to our Client's Hearing Officers to access our Solution to enter their disposition($) directly into the Solution, saving time and costs. 1* Payment Processing -- Data Ticket accepts Visa, MasterCard, Discover and American Express. In addition, we offer the Lowest Single Transaction Cost for Credit Card Use — Data Ticket has always charged the Public a single transaction fee, regardless of the number of citations paid in a single transaction. This is not the case with other vendors who charge exorbitant fees for the public to pay their citations online. We charge the lowest Fee of any vendor in the Industry, Including the City's current vendor. Call Recording — Our Solution utilizes a call recording application records all inbound and outbound customer service calls as digital recordings that can then either be emailed or placed on any form of media to be sent to our Clients. FTB Collections - Data Ticket offers the most comprehensive California Franchise Tax Board interface for the Interagency Intercept Program for advanced collections in the Industry and has done so for the last 16 years. 4 Staff Availability . Data Ticket also makes available to our Clients our data entry manager and data entry lead, our customer service manager, our complete adjudication department, our complete operations department, our complete accounting department and our complete IT department. Of course, should the City prefer to work through a single point of contact with a supplemental point of contact, we can accommodate that as well. Our goal in working with Proprietary and Confidential to Data Ticket, Inc, 11 P a g e 25G-35 Data Ticket, Inc. City of Banta Ana Newport Beach, CA Request for Proposals for Automated 0: 948 752-6937; F: 949 752-6033 Parking Citation and Processing Services each Client is to fit their Individual needs. We do not expect a Client to mold to our processes or business model. Online Notices & Adjudication tetters _ Data Ticket moved to a noticing vendor over six years ago because we wanted the ability to provide our Clients the option to print and reprint notices and letters that are sent to customers on behalf of the City, This enables our Clients to confirm the address to which each correspondence was sent and It also provides our Clients with the ability to see an actual copy of correspondence within our website, Our noticing vendor provides each correspondence to Data Ticket via a PDF. This PDF is then stored on a server that's sole purpose Is to provide access to each notice sent. When a Client is viewing a citation record in our system, each notice number is hyperllnked to the actual notice sent, 4 No Increase In Fees Data Ticket does not rely on a CPI charge that Increases our costs annually. We maintain the fees agreed upon our contract unless the services are changed or postage Increases. This is beneficial to the City because it eliminates an increase in annual budgetary costs. of Flexible Adjudication Processing Data Ticket provides the capability for our Clients' citizens and visitors to request reviews and hearings online and provides the option to attach up to three supporting documents. Our system allows customers to complete the necessary forms online and send their supporting documentation real-time, thus expediting the process and ensuring the citation has been placed on hold in a timely manner. ■! Extensive Noticing - Data Ticket sends up to 5 notices including: 1 daily/courtesy notice and 3 delinquent notloes, plus 1 FTB notice for parking citations, Often times other vendors will state they do "special collections"; however, that does not involve sending out 3-4 notices at no cost to the City nor does. It Involve any customer service. This means the City will often see a "hand -processing" fee or other type of monthly charge. Correspondence Processing — On the following pages we have provided a sample of our Courtesy Notice as well as a sample of our Fled or Drive Away notice, The Courtesy Notice is a notice that is required by CA DMV for citations that are unpaid prior to attaching any penalties. The City currently refers to this notice as a Delinquent Notice. Proprietary and Confidential to Data Ticket, Inc. 25G-36 121Page Data Ticket, Inc. Newport Beach, CA 0: 949 752.6937; F: 949 752.6033 Sample Courtesy Mill � ill 115120074 0979.1 anon rocesstng Center F.O. Box 140.79 NawPon Beach. CA 02858-0478 DITDILai d'JTC mm 111 0.4 .04aJP399a pe.il0:.�9.tWT1 139211 Itfilllfp1111r6d)Hpgalri Jlat'fill'I'atlillhi'uaallitilii s r W� City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services IF YOU RECEIVED THIS NOTICE IN ERROR- SEE THE REVERSE SIDE notice. vehWiIIn 'm Plot./VIN, State: Make: JEEP NOTICE DATE: 03119114 AMOUNT DUE:$39.00 ,! I n I. Sendoheckormoneyontee, NOCASH. USrurdsoniy., 2. Pant ckation numhernnycNrpaymant. 3. vTo4ndmeprmont gt Harr the ketWm Po+tlon a/mis natica nih y0urpaym/nL 4.. Failurato wlpond ari8 raecl$aLthatoss ofyow t�ht {a ayplal. as follows: 1) Pay the parking citation Indicated below online at www.CftationProcescmgCentar.conr OR by malt at the address indicated below OR by telephone at 1800989.2058 2) Fite, an affidavit of non.tlabi[ity lose reverse) 3) Appeal the parking clfolon Your payment or appeal most be received no later than 14 days from the DATE OF THIS NOTICE. To Submit an appeal, provide a written explanation online at vnnv.CitationProcescaliCenter.com or send by mall to: The Issuing Agency, CIO Citation Processing Canter, P.O. Box 11024, Newport Beach, CA 925585016. THE DMV MAY WITHHOLD RENEWAL OF YOUR VEHICLE REGISTRATION IF YOU FAIL TO RESPOND[ Vehicles with 5 or more citations may be impounded Or Immobilized pursuant to California Vehicle Coda Sections 22851($)(1) and 2201,7. For additional information please visit wvrwCBatfonPrdcessingConter.cont or Sag 1,800.9892D58 and revlew the bock of this notice. 0924114 20.81b, 5:45 Pat TOTAL DUE NOw �I�IIIIillll�lllllll�llll DUE AFTERD4102714 DUE AFTER 04P16M4 Aeonvenienceiaemayha applied 4079.1 DO NOT SEND CASH. WRITE CITATION p ON PMT MAKE CHECK OR NIONEY ORDER PAYABLE TO: 13Viea ©MasterCard LJOBcovaY IIAmedcan Hxpross Number Exp._,_,_Tip Code:_„__ Phone 02Yl41t4205=170 39.80 Proprietary and Confidential to Data Ticket, Inc. 25G-37 °4d'tnnhfhrvlu4141f,a•l[h°i'Idr,inpaal'4nnlh' r on .acing Cantor P.O. Box 10470 Nevrpert Beach, CA 02858•D479 $3S:00 131Pag6, Data Ticket, Inc. Newport Beach, CA 0: 949 752-6937; Ft 949 752-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services Sample Fled / Drive Away Notice In addition, Data Ticket sends "Drive Away" or Fled notices on behalf of our Clients. Below, please see a sample of such notice, OAPORAT� aunea4T -.1 340$$110$1 111 tlJaI1414tgtuPpyrq�lllt�l9nl�utngnprpq,yaw 6ARAEN 6fidVE CA 82245 MAILING DATE: Io124/2016 ,I Description ,'_:Datali Citation Numnen Milan Date a. Time: 10120/2016220:00 PM ucen06 Plate Of VIM: Location GAVIOTAAVE Amount: $50.00 Thin parking citation Is being mated to you In accordance with C.V,C. secsonA0202(Q, Which reads: 11, during the Issuance of a notice of parking violsdon, without regard to whether the vehlots WN INVOIN Attended or unattended, the vehicle to sheen away prior to attaching the notice to the vehicla, the issuing officer shall 614 the notice With. the pmcessfng agency, The processing Agency $halt mail, tivithin 16 calendar days of Issuance of the noflct of parking violation, a COPY Of the notice or transmit an electronic facsimile of the no0te to the registered owner. Citation most be paid of contested With the City of Long Beach within 21 days of the issuance date. On@Miono may he directed to the Parking Citation Section at The City of Long Bacon Phone- in Parson - Thank you foryour Immediate attemlon. 4 Report Generator -Data Ticket provides our Clients with a custom reporting tool called Report Generator that allows our Clients to create custom reports based on nearly every data field in the database. In addition, our Clients can save these reports and share them with other staff within the City, Your current vendor does not offer this service. Below, we have provided the City with a view of the Reporting Home page that displays citation statistics in a graphical manner for our Clients. As you can see from this screen print, Proprietary and Confidential to Data Ticket, Inc, 14 1 p a g e 25G-38 Data Ticket, Inc, City of Santa Ana Newport Beach, CA Request for Proposals for Automated O; 949 752.6937; F: 949 752-6033 Parking Citation and Processing Services a drop down box Is provided in the top right corner that allows the user to select the month that he/she wishes to view. In addition, this screen is configurable to display a variety of statistics. W, :aBaris: �. PaYm*"n5 Nefand¢� tWPdisUau �Pmwdnc Pomof! nlan,mano �{Mtan .. �<�,,.. a iNry z¢ € III x ° (fix( tax s p i . Below, we have provided a screen shot of our "Report Generator" capability. This capability provides our Clients with the ability to select a "Standard Report" from the table on the prior pages and set Optional Criteria, as well as drag and drop Report Columns Into and out of the Report. If you choose, you can also start with a "Data Collection" and create a totally custom report. [ZQC#At10N PROMSM MIER 24siv+a5Virtm:ettpgq ga%:nal [rnxn. knw✓5 Y.+Y.rm�x #e.q.:a.. .. 9ev a;ry 1e. a ... ..w.R. S.. smarm n Proprietary and Confidential to Data Ticket, Inc. 15 i P a d e 25G-39 Data Ticket, Inc. Newport Beach, CA 0: 949 752-6937; F: 949 752-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services Once you have created the report you would like to run on a regular basis, you can delete the report, clone the report or share the reports amongst co-workers or you can simply save the report to your "My Reports list as depicted on the following screen shot: ON PRQCESSING CENTER -r s --s 0,, yy avnii kcyrtP gemb3r�ry - Pfaq'p01i .. to*A.W ' rt"Pam :;.t RoOn? §m `roa; � d� i J Fy, 1<a4nq YR@/3414 gggq ; yyy @, 14,0]411 E Y•ONy rub, r/]e[ga14 UAM rv,� �hy 0I9vi3 AN h P T(9 Yxti dtlln. PVllul,upua Ntntgns ....... c. tF3B.G9ISIry 2ltatun YflN 11�i3PVN � GiQbt #.fitlRlS YFIattPotl dHvZanll wYaNfna /"jb[3813 Um Vp lltm Nauadbra iA6tatetxatiwasnct 3'2h.VN 9dayf. tA+�UI>iia"t Niled`cn fFy �W i arum enro.3liWauon� tbnlhtaNanrye wexroi mdn w NaI+Y[30 dnyu W,i:Ya cnnmx w„ney,�i Po,y rxianwrtPom xy>m.,,z6« anajgt n Earuf C4a,brty wnMaapalJ. 11,11mPwN rM furAl m.iiq amowf, (L yi. Pb+Ca CMngeatie µa pa3ya I iwmbu oM¢rpplwylTrt,nOra n.wmmex ro,..Nx mni�.. 4 Issuance Mapping — Our Solution has the ability to track the issuance of citations and display that in map format to understand what types of violations are being issued and where they are being issued. An image of this feature is provided below. As you can see, the map displays violations by color and provides the ability to zoom in and out of a particular area, as well as to click in a citation and have it take the user directly to the citation in question. PROCESSING CENTER �,,..,. •� ;�x,. �,c a�,!t 3 usaaw:r: sc= 3 i @i �& s=Y i w $td I li z � ^3 Proprietary and Confidential to Data Ticket, Inc. 25G-40 161Page Data Ticket, Inc. Newport Beach, CA 0; 949 7626937; F; 949 752-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services 4. Financial Responslbflity iCapacltyl Data Ticket Is privately owned and operated; we have nc loans or debt, All of our hardware and software is 1DD% owned, maintained, supported and upgraded by the company, we outsource nothing. In summary, we are fiscally conservative and financially sound, consistently planning for the future and ensuring that our research and system upgrades keep us at the forefront of the industry and provide our clients with fully tested, stable, leading edge technology and services. Below, Date Ticket has provided our most recent audited financial statement, evidencing our financial capability to fully perform the required services, Including provision of equipment and personnel expenses ova a ninety (90) day period. We respectfully request this Information remain confidential. Data Ticket, Inc. Balance Sheet As of December 31, 2016 p4cMw gwr.w,wi:wY.w A5SET5 Current Asaats Chaok)nglSavings Total Checking/Sayings Total Accounts Reasivahle Total clthor Currolit Assots — Total Current Aasots TOTAL ASSETS LIASILIT125 & EgUITY Llohllftlos Tot11 Currant LI1GUItlos T401 1.101111160 — Total Equity TOTAL WASILITIE9 & EQUITY 5, Proposal Deposit On the following page, Data Ticket has provided a Proposal Deposit via cashiers Check in the amount of 5% of the total proposed annual contract amount from the proposal Item pricing, Proprietary and Confidential to Data Ticket, Inc. 25G-41 ........... . 171Page Data Ticket, Inc, Newport Beach, CA 0: 949 752-8937; F: 949 752-8033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services SECTION B: EXHIBIT C — PROPOSERS STATEMENT AND PROPOSAL ITEM PRICING Below, we have provided a signed copy of Exhibit C. In addition, as was Instructed in the issued Addenda, we have provided a cost proposal on the following pages. EXHIBIT O CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR AUTOMATED PARKING CITATION AND PROCESSING SERVICES PROPOSERS CERTIFICATION and PROPOSAL ITEM PRICING Certification • I Certify that I have read, understand and agree IR Ura terms and conditions of this. Request for Proposals. I have examined the Scope orServlcee (Exhibll A) and am (aminal VUh ille scope of "rk luestluns. I,, familiar with all the existing Conditions and limitagon that may Impact v nk requests. I understand and agree that f am responsible for re purring any errors, omissions or discrepancies to the City for clodfieallon prior to the submission of my proposal. Proposal lima Plica - Pdcing shall be based an an f l?004VCost, time and materiels basis - see narralivo) for sarvfces described In Exhibit A. Fee must be Inclusive droll costs, Including but not limited Ic, duW and indirect costs forlabot. overhead, Incidental supplies, travel, mileage, and fuer. Any special motorists wlil be purchased by the contractor only after discussed and authorized by the City projectsmanager or designee In Vatting. 64N6 DSSGRIptTION QUA=TY. UNIT:tIN6F Qt6ANTlT'K....,PP400 UNIT' -.S)T£RDUD :•T4UL4pRfDS, :.. 4 0 7alai•Uxtenda4CasWA,dd-4.-tAea-taAd2) t (AddtaA>dat6Caat-Witten (AfkiitAGey-aAd-� a Data Ticket, rac. (tA19) 7SZ-6 oxL 337; (9d9} 753-6033 LEGAL. NAME OF COMPANY PHONE AND FAX NUMBERS 4400 Campus Drivt. Suitt 206 Newnor1 peed,,. CA 42660 BUSINESS ADDRESS Brook Westeett CfiicCOpCratfna Officer PRINTED NAME OF AUTHORIZED AGENT fiITLE 93-1010811 NA FEDERAL ID NUMBER (IF APPLICABLE) CONTRACTOR LICENSE NUMBER(IFAPPLICABLE) City of Santa Ana —Antnmalad Par41n0 Citation and Processing Services (RFP 16-116) Proprietary and Confidential to Data Ticket, Inc. 25G-42 181 Page Data Ticket, Inc. Newport Beach, CA 0: 949 752-6937; F: 949 752.6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services Fee Description — High Level: On the previous page, we have completed the Exhibit C per the City's request, In addition, we have provided a total estimated cost below for each of the 5 years of the contract based on the cost proposal we have provided on the pages that follow. Many of these services have been marked as optional; however, we strongly encourage the City to think about Incorporating some of these features. Given that based on the numbers provided during the City's RFP process the City's current vendor is only realizing a 74% collection rate, we strongly urge the City to look at the manner In which we process parking citations, including the use of delinquent and FTB collections as well as our ability to acquire out of state RO information and the number of attempts we make to obtain RO information compared with the City's current vendor, A 74% collection rate is simply unacceptable for any City, let alone the City of Santa Ana, We do not have a single parking citation processing Client that has a collection rate in the seventy percent range. In fact, we do not have single parking client with a collection rate below 84%. That is a full 10 percentage points. Simply using the City's numbers provided, if we were able to moot the lowest collection rate we currently provide, we would add more than $500,000 per year in revenue for the City of Santa Ana and that does not include the reduction In expenses provided below: pessrlptbersn Cost .Parking Citation Processing -Handwritten Parking Citation Processing -Electronic 1st Courtesy Notices Ind Notice Optionah Rd Notice Optional: 4th Notice Optiional. 5th FIB Notice Optional: 19 level Adjudication Hold - Scanning and Upload Optional: Tat Level Adjudication Dispositions :1st 14VQI Adjudhelion tetters Optional: 2nd level Nearing Hold^Scanning and tiptoed Options(: 2nd Level Nearing Scheduling 20d level Nearing Letters 'optional: Nearing OHImrnme Payment Processing CrehtCard Convenience fee ESN Acslusition ;Optional:no Collections but of State collections Opliunall Delinquent Collections Manoallly,ecLen citation scanning Optional: Additional letters 'Indicates Optional S.,he Unit Est. Subtotal A,btotal ;ubCotal 9ubWtal Subtotal .quantity Year$ yeah Year$ Vesta ye S $ 0.40 Each or - $ $ $ $ $ S 0.25 Each 85,659 $21,414.75 $ 21,424,75 $21,414.75 $21,4105 $2L414,75 $ 0.70 Each SIMM $4.3,201.70 S 43,281.70 $4d,2s1-70 $43,291.70 $49,281m $ D,n Each 1,12$ $ 1,1211,28 $ 1,124.28 5 L124.28 $ 1,124.28 $ 1,124.28 Included in nellnquent Goilednens Fee Each UNK $ - $ $ $ - $ - IncludedinDellnquentCollodion,Pee Each UNK $ $ $ $ $ , Included In no Fee Each UNK $ $ - $ $ - $ , $ 0.50 Each SX9 3 2,50450 $ 2,384.50 $ 2,584.50 $ 2,764.50 $ 3,564.50 S 0.95 Each 5,297 $ 5,032.15 $ S,n$225 $ 5,0$115 $ $,032.15 $ S,032.15 $ 0.72 Each 5,247 $ 3,813,84 $ 5,813.84 6 8,813.84 5 3.81334 $ 3,81334 $ 0.50 Each UNK $ - $ $ $ $ Included Each LINK $ $ .- $ $ $ $ 0.72 Each UNK $ - $ .. $ $ S , See Description Each UNK $ $ $ - $ - $ Included Each UNK $ - $ - $ - $ g - Chaagedtotheduzen Each $ . 4 $ $ $ - included Each UNK $ $ $ g $ , 15% Total Paid UNK -$ $ $ - $ $ _ 20% Total Paid UNK $ $ $ $ $ _ 20% Total Paid UNK $ $ $ $ $ - Included Each UNE $ - $ $ $ $ - 8 GM Each LINK $ - $ . $ _ $ S $77,231.22 $ 77,293.22 57$2.23.22 $77,331.22 171,231.12 In an effort to provide further information and complete transparency into the services Data Ticket offers and the costs associated with those services, we have provided a detailed description on the following pages of each service proposed. Proprietary and Confidential to Data Ticket, Inc, 19 ( P a q 25G-43 Data Ticket, Inc, City of Santa Ana Newport Beach, CA Request for Proposals for Automated O: 949 752-6937; F; 949 752.6033 Parking Citation and Processing Services FOG Description — Detallm Below and on the following pages we have provided a detailed description of the services offered by Data Ticket, Some of these services are marked as "Optional" as the City may choose to use them or not. Manual Parking Citation Processing: $0,40 Services for the above-mentlonod (toms include. • On-site data entry of manually written citations performed within 48 hours of receipt • On-elte quality assurance verification of manually entered citations • Scanning of all manually written of lens onto our network for storage and ease of retrieval • Bi -monthly shredding of manually written citations Electronic Parking Citation Processing: $0,25 Services for the above-mentioned items include. • Automated citation transmission into Data Ticket's Citation Management Solution 24/7 • Automated confirmation email detailing successfully transmitted citations • Automated transmission of photos attached to citations Courtesy Notice: $0,70 Services for the above-mentioned item Include., • Semi -custom Courtesy Notice that is printed on an 8 ^/x x 11" place of paper with a perforated tear -of payment stub provided in a window envelope sent to the registered owner of a vehicle • All notices are attached to the citation online and are viewable via the web • All notices sent via 1"r Class Mail • All notices include a return envelope in which the responsible party may submit payment • This charge is only incurred if the Individual does not pay off the windshield and a notice Is sent to the Individual as a result Out -of -State Collections; 23% of revenue collected • This fee will cover all expenses associated with obtaining out-of-state registered owner Information and will only be due when a citation is paid Data Ticket Is a recognized Strategic Partner with NLETs and we are currently utilizing the City's and our ORI • This fee is not combined with any other contingency fee. For example if a citation Is railed to a delinquent status, only 23% of revenue collected will be charged • If Data Ticket does not collect on a citation that Is issued to an out of state plate, the City does not owe this fee. Delinquent Collections (Optional): 20% of revenue collected • This flee will be assessed when a citation is ninety (90) days past the citation issue date, assuming a first notice has been sent to the registered owner and the citation is not on hold for any reason • Three Delinquent Notices will be sent to the registered owner at no cost to the City • All notices are sent via First Class mail and all notices are printed on an 8 % x 11" sheet of paper and folded Into a window envelope; in addition, a window envelope is provided for the recipient to return payment • All notices are attached to the citation online and are viewable via the web Proprietary p ry and Confidential to Data Ticket, Inc, 20 1 P a g e 25G-44 Data Ticket, Inc, City of Santa Ana Newport Beach, CA Request for Proposals for Automated C: 949 752-6937; F: 949 752.6033 Parking Citation and Processing Services If Data Ticket does not collect on a citation that Is delinquent, the Agency does not owe this fee Notices will be sent via 1 st Class Mall, and Data Ticket will be responsible for the cost Incurred and all customer service and payment entry If the City prefers to continue with Its current processing timelins and not use Delinquent Collections, we have provided a cost of $0,72 per notice for each 2nd notice sent. Franchise Tax Board processing SSN Lookup: $0,00 per SSN W This fee will be assessed to lookup a social security number associated with a particular registered owner and address • This charge is charged per unique SSN, not per citation PTB Collections: 16% of revenue collected o This fee Is charged if a citation is paid at the Franchise Tax Board S This charge Is not combined with any other charge; for example if a citation is rolled to delinquent status and paid at FTB, only the 15% of revenue collected will be charged a Data Ticket will send an FTB Notice to the Customer as required by the Interagency Intercept Program; this notice will be sent via lid Class Mall and will be sent at no cost to the City • All notices are attached to the citation online and are viewable via the web b Data Ticket will pay for the Agency's cost to participate In the FTB program; annually, FTB will send an invoice to the Agency for the number of debts placed at FTB; the Agency will simply provide this invoice to Data Ticket and Data Ticket will pay It in full i If Data Ticket does not collect on a citation that is at FTB, the Agency does not owe the collection foe Adjudication: 1st Level Review Hold & Scanning of Review Request (Optional) $0.50 per citation * Data Ticket will review all documentation received by the Appellant and determine whether the request received within the required timeframe If the request was received within the required timeframe, Data Ticket's Adjudication Department will place the citation on an Administrative Review Request Hold and scan all received documentation Into the Citation Management Solution where it is displayed on the web for the Agency's Staff 6 If the request is received outside the required timeframe, the Agency will have the option to proceed as though the request was received within the timeframe or it may elect to have Data Ticket send a "time expired letter" rejecting the appeal 18° Level Review Disposition (Optional) $0.75 per citation • Data Ticket will review all documentation received by the Appellant and render a disposition; Currently the City performs this function but Data Ticket's Adjudication Department is happy to take on this rosponsibility in the future o "rhe disposition will be available online for the Agency's Staff to review This fee Is only charged If Data Ticket actually performs the Vt Level Reviews and the City does not Proprietary and Confidential to Data Ticket, Inc. 25G-45 211Pag.o . Data Ticket, Inc. Newport Beach, CA 0: 949 752-6937; F: 949 752.6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services 1•` Level Review Disposition Letters $0.72 per letter « Data Ticket will send a custom disposition letter to the Appellant via 1" Class Mail • All letters are attached to the citation online and are viewable via the web 2"4 Level Hearing Hold, Scanning and Scheduling of Hearing $0.50 per citation (Optional) Data Ticket will review all documontatlon received by the Appellant and determine whether the request received within the required tirneframe • If the request was received within the required timeframs, Data Ticket's Adjudication Department will place the citation on an Administrative Hearing Request Hold and scan all received documentation Into the Solution where It is displayed on the web for the Agency's Staff and the Hearing Officer • If the request is received outside the required timeframe, the Agency will have the option to proceed as though the request was received within the timeframe or it may elect to have Data Ticket send a "time expired letter" rejecting the appeal • Data Ticket will work with the designated Hearing Officer to schedule the Hearing based on either a pre -determined schedule or an ad hoc basis, depending on the Agency's schedule 2"tl Level Hearing Disposition (Optional) $75.00 per hour • Data Ticket's Independent, certified, insured hearing officers will be provided to the to perform in-person, phone and written hearings • Each hearing request will be reviewed, heard or read and all required research will be performed • The Hearing Officer will enter a judgment into the Citation Processing System for viewing by the Agency, Appellant and Data Ticket « Hearings will be scheduled • The Agency will Incur costs associated with mileage as defined by Federal guidelines • Data Ticket will work with the Agency to arrange for the use of a conference room at an Agency location or the Agency may elect to have citations heard at a centralized location within the County 2"d Level Hearing Schedule & Disposition Letters $0.72 per letter • Data Ticket will send a custom disposEtion letter to the Appellant via 1•r Class Mail • All letters are attached to the citation online and are viewable via the web • Disposition letters will be sent Monday — Friday Joint I Escrow Banking Services (Optlonal) $100,00 per month Services for the above-mentioned item Include: • Daily deposits of funds to the Agency's escrow account • Online, real-time reconciilatlon reports that tie directly to the bank statement • Processing of all credit card charge -backs and Insuffloient Funds • Month-end reconciliation of ell funds collected • Disbursement of County / State Surcharges at month-end • Payment of Data Tickets invoice • Disbursement of the net remittance to the Agency • Scanning of all payments directly to joint bank account dally using remote check deposit • The Agency will be responsible for the purchase of banking supplies, Including checks and endorsement stamps; these fees typically run $200.00 per year Proprietary and Confldentlal to Data Ticket, Inc. 22 1 P a g e 25G-46 Data Ticket, Inc. Newport Beach, CA 0: 949 752.6937; F: 949 752.6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services Charge -backs and NSF's (Optional) $9.25 per Issued instance • Data Ticket will process credit card charge -backs and NSFs when notified of each occurrence • Once processed, Data Ticket will send a oustom letter to the Individual detailing the returned item and the amount due on the oltatlon Refunds (Optional) $3.50 per issued instance • Data Ticket will process refunds when notified by the Agency • In the event the Agency utilizes Joint Banking, Data Tioket will verify, generate and send each refund due when notified by the bank • Refunds will be Issued weekly • Refunds will be sent via 7a' Class Mail 4arvices included in the Above Costs. Online Access for the Agency's Customers: Included The Agency's Customers will have the ability to perform the following fund, ons online: • View real-time oitation(s) data • Pay for a single or many citatlon(s) • Request a 9•' level Administrative Review and attach up to three docr,iments supporting their position • Request a 2nd Level Administrative Hearing Request and attach Lip to three documents supporting their position • Print a receipt • View pictures of the citation taken by the issuing officer (if the Agency allows) Online Access for the Agency's Staff: Included Access to the Agency's data is based on unique usernames and passwords assigned to each individual who requires access to the system. Data Ticket does not limit the number of individuals who have access to the system and the number and types of access can change at any point with a simple small request to Data Ticket, Our Solution is setup to mainlaln a complete audit trail for each and every transaction in the system, therefore, the username is displayed next to every transaction in the system, indicating who performed the transaction and when, Dependent on the access rights provided to each Agency Staff member, the following capabilities are available: • View real-time citation(s) data, including pictures taken by the Issuing Officer • Accept payment via VISA, MasterCard, Discover and American Express credit/debit cards • Accept payment via Cash, Check or Money Order • Process NSFs, Chargebacks and Refunds • Reduce or inorease violation amounts, dismiss citations, void citations and place citations on hold Change citation data, including violations, date, time, plate, location, comments, make, model, color, registration expiration date and others • Perform Administrative Reviews online by entering the disposition directly online • Generate a time expired or letter of non responsibility for a citation in the adjudication process Proprietary and Confidential to Date Ticket, Inc. 231 P a g e 25G-47 Data Ticket, Inc. City of Santa Ana Newport Beach, CA Request for Proposals for Automated O; 949 752-6937; F: 949 762.6033 Parking Citation and Processing Services • View the complete reason for the Review Request and supporting documentation provided by the Appellant directly online • Edit Appellant Information • Upload disposition documents sent to the Agency via US Mall • Add a note to a citation and see all comments added to the citation • View the reason for the 2" d Level Administrative Hearing Request online and view the supporting documentation provided by the Appellant, directly online • Print a receipt with or without registered owner Information Reporting: Inoluded • Data Ticket offers 24 reports online for our Clients to generate, print and re -print 24/7. We provide real-time reports that can be generated for any timeframe required and we provide pre-processed/month-end reports that reflect the month-end view of date. • All reports are available online and because we do not purge data unless specifically requested to do so by a Client, the date is available as long as the Agency Is a Client. • All reports are generated In HTML so our Clients can copy and paste the data Into Excel for data manipulation purposes. • If the Agency were to request a report that was not already available using the standard reports or report generator, Data Ticket would work with the Agency to design the report and provide It to the Agency at no cost. Manual Payment Processing: Included • Manually received payments (checks, cash, money orders and credit card payments sent via US Mall) are rocelved at our PO Box in Newport Beach where a bonded and Insured courier picks up the mail dally and delivers it to our Newport Beach office i On-site Mail Department opens, sorts and batches the payments before providing them to our on-site Data Entry Department • After double-blind entry of each payment, the citations are updated by our Quality Assurance team • Payments are then provided to our Accounting Department where dally deposit slips are completed and provided to a bonded, insured courier who takes them to the bank Registered Owner Information: Included • Registered owner information for ali citations issued on California license plates • Turnaround time for acquisition of California registered owner information is some day • Registered owner Information for all citations issued on out of state license plates • Data Ticket is a recognized Strategic Partner with NLETs and has access to registered owner Information nationwide real-time through NLETs servlce • Access to this system requlres the use of the City's ORI for tracking purposes only; Data Ticket will utilize its own ORI for actually acquiring the out of state RO data CA DMV Holds and Releasor. Included • California DMV Holds and Release performed dally via an online connection • Holds and releases can also be performed reahtirns, upon request • Citatlon amounts placed on hold are updated daily in the event a partial payment is made Proprietary and Confidential to Data Ticket, Inc. 25G-48 24IPage Data Ticket, Inc. City of Santa Ana Newport Beach, CA Request for Proposals for Automated 0: 949 752-6937; F: 949 752.6033 Parking Citation and Processing Services Customer Service: Included + Data Ticket provides a live, bilingual, on-site Customer Service department that is fully trained to answer questions related to citation issuance; payment, adjudication, fix -it tickets, sign -offs, FTS, advanced credit reporting collections and more + All calls are recorded to quality assurance and recordings can be sent to the Agency at any time for review Data Ticket's IVR is bi-lingual and accessible via several toll-free numbers; the IVR provides real-time Information to the caller regarding current status, Including the amount due 0 The IVR accepts VISA, MasterCard, Discover, and American Express Web Presence: Included Data Ticket's Solution is 100% web -based and Section 608 Compliant and Is provided at: www.CitationPro gggj0oGenter.com; this is a generic website in the sense that It is not Agency branded. This website allows for the Agency and the Agency's Customers to access citations online If the Agency prefers to have an Agency branded website, one In which the look and feel mimics that of the Agency's website, Data Ticket can and will provide this feature to the Agency. Cost Increases: Postal Rate Increase Offset — If postal rates Increase during the term of the agreement, fees to DTI shall be raised immediately to offset the effect of the actual postal rate Increase. CPI Increases — There will be NO CPI increases for the duration of the agreement. Proprietary and Confidential to Data Ticket, Inc. 25G-49 251Page Data Ticket, Inc. Newport Beach, CA 0: 949 762-6937; F: 949 752.6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services Detailed Android Pricing (Optional) We understand the City has existing handheld units that are in good working Condition and but that are no longer supported. The City may continue to use those handhelds and printers or the City may opt to use new handhelds. Below we have provided the City with a few options for how to proceed with either now handheld units or the existing handheld units: 0 tlo : Continue using the existing handhold ticket writers and printers, as well as the existing citation issuance software. This option will cost the City nothing, Data Ticket will write a download program to import the citations into our Solution at no cost to the City. D tont: Continue using the existing handheld ticket writers and printers; however, discontinue the use of the City's existing vendor's handheld Issuance software and switch to Data Ticket's handheld citation issuance software. This option will cost the City the annual license fee of $300.00 per unit for the V year and a fee of $150.00 per unit for the 2"d and each subsequent year. Additionally, the City will be charged $5.00 par unit per month for software upgrades, enhancements and support. Option 3: Purchase or lease new handheld devices and printers and use Data Ticket's citation issuance software on the devices. Item Samsung Galaxy or Similar Device & TSC 3" Printer 145 Print 1 Piece Android Based Solution 3 Year tease Price $50.00 / per month $60.00 / per month Purchase Price $1,300,00 $2,700.00 Additionally, the annual license fee of $300.00 per unit for the 1' year and a fee of $150.00 per unit for the 2"0 and each subsequent year will he charged. Finally, software and hardware maintenance fear, of $25.00 per unit per month will be charged. Training Included Onsite training at the City's preferred location will be provided free of charge for both the handheld ticket writer training and the system training. Training typically takes place over the course of a few hours and will be customized to meet the City's requirements. Wireless Services Actual Cost If the City elects to utilize a wireless roll plan by which to transmit citations, Data Ticket will pass the cost of the cell pian directly from the wireless vendor. p..rleta ry .. Pro and Confidential to Data Ticket, Inc. 25G-50 26Paga Data Ticket, Inc. City of Santa Ana Newport Beach, CA Request for Proposals for Automated O: 949 752.6937; F: 949 752-6033 Parking Citation and Processing Services SECTION C: EXHIBIT ID — REFERENCES EXHIBIT O CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR AUTOMATED PARKING CITATION AND PROCESSING SERVICES REFERENCES List and describe fully the contracts performed by your firm which deniananste your ability to provide the supplies, equipment or services Intruded In the scope of the proposal specmcations. Anach addiilogal pages if required. The City roservea the rightto contact each of the references listed for additional information regarding your hut`s qualifications. Reference Customer Name:CitYofLOA9BaaCb Contact Individual: Joln Gross Mand M,ofFinancialMgmt Address: 333 West Ocean Blvd Phone Number. 562-570.6427 Lan&Beath CA90S02 Facsimile Number. NotAvagible Contract Amount &MU00,00 Arbitially Year: 1993 to Current Description of quppltes,equipment, or services provided: Laumonier service, tib processing, delinquent collections, paymentprocessing, banking services. Reference CucfomerNara:_CityofWhittier Contactindivrdiial: Gar Bakar,NflnagementAnalyst Address: 7915 S. Painter Avenue Phone Number: $62-567-9213 CS7titder. CA 90602 Facsimile Number. Contract Amount $75,000.00:Ariguail Year 2004toCtrrent Description of supplies, equipment, or cervices provided: a' c u n t o s o d' lag Referonce Cuotomer Name: City of La Puente Contact inaividuae Milan Mrakich, Coda Enforcement Manager Address: 15900EastMainstreet Phone Number: 62 -855-1510 La Puente, CA 91799 Facsimile Number. 626.355.0516 ConvattAmount: Est. 535,000rAnaually Year; AkvardadiiicotuyetitivebidoveTPhoenia.T2, Description of supplies, equipment, or cervices provided: Turbo Data Systents and others Parking citationprecessing, collections, delinquent collections, FTB collectiow, adjudication processhig Md hanetheld ticket writer; were siva sled to Data Ticket. In addition. Data Ticket provides the Citrus r-nr1P City of Santa Ana —Automated Parking Citation and Processing Service- (RFP 18-118) Page 25 Proprietary and Confidential to Data Ticket, Inc. 25G-51 271Pcagc Data Ticket, Inc. City of Santa Ana Newport Beach, CA Request for Proposals for Automated O: 949 752.6937; 1944 752-6033 Parking Citation and Processing Services SECTION I): EXHIBIT E- PROPOSERS STATEMENT EXHIBIT B CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR AUTOMATED PARKING CITATION AND PROCESSING SERVICES PROPOSER'S STATEMENT Proposer understands and agrees that this written RFP (of any part thereof specifically designated and accepted by the City of Santa Ana, hereinafter City) shall constitute the entire agreement between proposer and the City only oRer it has been accepted by the City Council, endorsed by the Clerk or the Council with her signature and official seal noting hereon the action of approval of the Council; signed. by the Executive Director or his duty authorized agent, and signed by the City Attorney, denoting his approval of the form of this document, and its execution, and when it or an exact copy of ithas been either delivered to proposer or deposited with the United States Postal Service property addressed to the proposer with the correct postage affixed thereto. Proposer further agrees that upon delivery (as defined above) of the accepted agreement he/she will furnish City all required bonds and certificate of liability Insurance within tan (10) days (excluding Saturdays, Sundays and City's legal holidays), or the funds, check, draft, or proposm's bond substituted In IfeU thereof accompanying this proposal shall become the property of the CI(yand shall be considered as payment of damages due to the delay and other causes suffered by City because of the failure to furnish the necessary bonds and because It Is distinctly agreed that the proof of damages actually suffered by City Is dif tcult to ascertain; otherwise sold funds, check drafts, or proposers bond substituted In lieu thereof shall be returned to the undersigned. Proposer understands that a proposal is required for the entire work, that the estimated quanfifies set forth in the RFP schedule are solely rot the purpose of comparing proposals, end that 111101 compensation under the contract will be based upon the actual quantities of work satisfactorily completed.. All terms contained In the specifications, the oertificotlon of nondiscriminationby contractors, and the required Insurance certificates are to be Incorporated by reference Into this agreement and are rnade specifically as part of this RFP. Finn Data Ticket, Inc. Signed and Printed Nsme:s uz�r'.%�� Rmok wc,sf t Tate ChtcfOperatiaA pfficcr Date October24.2gtb City of Santa Ana —Automated Parking Citation end Proea95ing Sarvlces (RFP M-115) Proprietary and Confidential to Data Ticket, Inc. 25G-52 281Page Data Ticket, Inc. Newport Beach, CA 0: 949 752.6937; F: 949 752-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services SECTION E: EXHIBIT F — CERTIFICATION OF NON-DISCRIMINATION BY CONTRACTOR EXHIBITF CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR AUTOMATED PARKING CITATION AND PROCESSING SERVICES CERTIFICATION OF NONDISCRIMINATION BY CONTRACTOR The undersigned contractor or corporate officer, during the performance of this contract, certitles, follrnas: I. The contractor shall rot discriminate against any employee or applicant for employment because of rice, color, religion, sex, or national origin. Thecontractorshalltakeaffimledive,actiontoensurethatapplicants are employed, and Ihat employees are treated during employment without, regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgradiu�g demalion, ortronsfer, recruitment or recruitment advertising; layoff or termination; rates of pay or otherfodns of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous Places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 2 Thecontractorshall,.inall solicitations oradvertfsementsforemployeesplaced byoronbehalf oftho contractor; state lint III Rallied applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 3. The contractor shall send to each labor union or representative of workers with which he bargainingadreement nr other txxrfnct or undi?rsfanrrm arvsrc+„na n.,,.�,+a.r .,.a<acr. of s and loymen- caw,xy,w the nMnceincur,spicuousptacesavailabletoemldoyeesandapplioantsforemployment- 4. mplogmenL 4. The contractor shall comply with all provisions of Executive Wert 1246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor, b. The contractor shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to Mather looks, records, and accounts by the admmistedng agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such rules, regulations, and orders. 6. In the eventof the contractor's noncompliance with the nondiscrimination clauses of this contract "with any of the sold rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further government. contracts or federally assisted tonstrudiahrservices contracts in accordance with procedures authorized in Executive Order 11246 of September 24,1965,and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulatio as otherwise providedby law. ns, or order of the Secretary of Labor, or 7. The contractor shall include the ocrtion of the s nr<nre ir„r„>,+„+aw,,.fl.b.u,,.,.,....,_,.,k i_-, a_ means iorr by a subcontractor or vendor as a result of such direction by the may request that the United States enter into such litigation to prote Cityotudnta Ana—Automated Parking Citaticn and PraCaOaing Servieee( fP 16-1 16) Page 27 Proprietary and Confidential to Data Ticket, Inc. 25G-53 as the 291Pa9e Data Ticket, Inc. Newport Beach, CA 0: 949 752.6937; F 949 752.6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services A. Pursuant to California Labor Code Section MS. as added by Chapter 643 Stats. 1039, and as amended, no discrimination shall be made In the employment of persons because of race, religious creed, oulor nailonal origin, ancestry, physical handicaps, mental condition, marital status, ursex of such parsons, except as provided In Section 1426, and any contractor violating this section Is subject to all the penalties Imposed fora violation of the chapter, Firm Data Tinker. Inc, Signed and printed Nana,, �✓{ �{ Deook Westcou Title ChfefbneratingOfficcr DateOataher22616 a City nr Santa Ana —. Autamalad Hark,np Citsllun and Pracacsira Sovtcas (RFP 164 16) Proprietary and Confidential to Data Ticket, Inc. 25G-54 301Prage Data Ticket, Inc. City of Santa Ana Newport Beach, CA Request for Proposals for Automated 0: 949 752.6937; F; 949 752.6033 Parking Citation and Processing Services SECTION F: EXHIBIT G — RESPONSIBLE PROPOSER — SUBMITTAL QUESTIONNAIRE EXHIBIT G CITYOFANTAANA REQUEST FOR PROPOSALS FOR AUTOMATED PARK NG CITATION AND PROCESSING SERVICES RESPONSIBLE PROPOSER— SUPPLEMENTAL QUESTIONNAIRE 1. How many years has your organization been in business in Caltomia as a contractor under your present business name and Iicenso number? _7 Xears If you performed same business under a different business name with same ownership and operation management and changed name clue to, but not limited to, bankruptcy, loss, or license, please complete an additional and separate questionnaire. 2. What is your firm's average gross revenue for the last three years? 5 8M 3. Is your I mh currently the debtor in a bankruptcy case? ❑ Yes [2 No If "yes," indicate the case number, bankruptcy court, and the date on which the petition was filed. ase Num leran ptcy Court ate t 4. Was your fin in bankruptcy any time during the last five years? (This question refers onl to a bankruptcy action that was not described in answer to Question 2, a wve.) Yes M No If"yes," indicate the case number, bankruptcy court, and the date on which the petition was filed. ase inn er an ruptcy urt ate ted 5. Has any California State License Board license held by your firm or its responsible managing employee or responsible managing officer beet) suspended within the last five years? Q Yes No 6. At any time in the last five years, has your firm been assessed and paid liquidated damages after completion of a project, under a services contract with either a public or private owner? (] Yes Q No 7. Has your firm ever defaulted oil a contract? ❑ Yes 12 No If "yes" explain on a separate page. S. In the last five years has your firm, or any firm with which any of your company's owners, officers or partners was associated, been debarred, disqualified, removed, or otherwise prevented from bidding on, or completing, any government agency project for anyrsason? ❑ Yes [3 No if `yes, explain on a separate page. State the name of the organization debarred, the year of the event, the owner of the project, and the basis for the action. 9. In the past five years, has any claim against your fimh concerning your firm's work on a project, been filed in court or arbitration? © Yes IT No if yes,d on a separate page identify the claim(s) by providing the project name, date of the claim, name of the claimant, the name of Ute entity the claim was filed against, a brief description of the nature of the claim, the court and case number, and a brief description of the status of the claim (pending or, if City of Santa Ann - AutgmateG Parking Ctmtian and Praseaatng 9arvicea (RFP ir�.t te) Page 7e Proprietary and Confidential to Data Ticket, Inc. 311 P a 9 e 25G-55 Data Ticket, Inc. City of Santa Ane Newport Beach, CA Request for Proposals for Automated 0:949 752.6937; F: 949 752-6033 Parking Citation and Processing Services resolved, a brief description of the resolution.) 10. In the past five years, has your firm made any claim against a project owner concerning work on a project or payment for a contract, and filed that claim in court or arbitration? 0 Yes t� No If "yes," on a separate page ident fy the cls m(s) by providing the project name, date of the claim, mme of the claimant the name of the en tdy the claim was filed against, a brief description of the nature of the claim, the court and case number, and a Grief description of the status of the claim (pending or, if resolved, a brief description of the resolution.) 11. At any time during the past five years, has any surety company made any payments on your firm's behalf as a result of a default, to satisfy any claims made against a performance or payment bond issued on your firm's behalf in connection with a project, either public or private? ❑ Yes M No 12. In the last five years, has any insurance carver, for any form of insurance, refused to renew the insuranos policy foryourfirm? ❑ Yes 6a No 18. Has your 5mi or any of its owners, officers, or partners ever been noble in a civil suit, or found guilty in a criminal action, for making any false claim or material misrepresentation to any public agency or entity? ❑ Yes Iffl No 14. Hasyour firm or any of its owners, officers orpartners ever been convicted of a federal or state crime of fraud, theft, or any other not of dishonesty? ❑ Yes ® No If "yes," identify on a separate page, the person or persons convicted, the court case and number, the crimes and the year convicted. 15. If your firm was required to pay a premium of more than one percent fora performance and payment bond on any project(s) on which your firm worked at any time during the last three years, state the percentage that your firm was required to pay. You may provide an explanation fora percentage rate higher than one percent, if you wish to do so. x IA % 16. During the Inst five years, has your firm ever been denied bond credit by a surety company, or has there over been a period of time Wien your fim1 had no surety bond in place during a project when one was required? ❑ Yes [2 No 17, Has Cal -OSHA cited and assessed penalties against the contractor or its associates for any "serious," "willful" or "repeat" violations of its safety or health regulations in the pestfive years? 171 Yes jd No (Note: K you have filed an appeal of a citation, and the Occupational Safety and Health Appeals Board has not yet ruled on your appeal, you need not include information about if.) If "yes," on a separate page describe the citations, the party against whom the citation was made, date of citation, nature of the violation, project on which the citation was issued, owner of the project, and the amount of penalty paid, if any. State the case number and the date of any OSHAB decision. 18. Has the Federal Occupational Safety and Health Administration cited and assessed penalties against the contractor or its associates in the past five years? ❑ Yes [R No (Note; If an appeal of the citation has been filed and the Appeals Board has not yet ruled, or there is a court appeal pending, you need not include information about the citation.) 1f "yes," oil a separate page describe the citation, the patty against whom the citation was made, date of City of Santa Ana—Automated Parking Citation and Processing Services (RFP 16.916) Page 30 Proprietary and Confidential to Data Ticket, Inc. 32 ( P a g e 25G-56 Data Ticket, Inc. City of Santa Ana Newport Beach, CA Request for Proposals for Automated O: 949 752-6937; F: 949 752-6033 Parking Citation and Processing Services citation, nature of the violation, project an which the citaticrr was issued, owner of project, and the amount of penalty paid, if any. Stats the case number and date of any decision. '19. During the last five years, has there, been more than ane occasion in which the General contractor or Its ass061110 have bean panelized or required to pay back wages for failure to comply with the federal Davis-Bacen prevailing wigs raquiremems? 17 Yes M No If'yes" on a separate pages, describe the violator, nature of each violation, name of the project, date of Its completion, the pubtle agency for which it was constructed, the number of employees who were initially underpaid and the anaountof back wages and penalties that were assessed. City of Santo Gann —Automated Parking Citation and Pruoe sing 80Nlagrs JR7'P 1F-110} Page 31 Proprietary and Confidential to Data Ticket, Inc. 33 1 P a g e 25G-57 Data Ticket, Inc. City of Santa Ana Newport Beach, CA request for Proposals for Automated D: 949 762-6937; F: 949 762-6033 Parking Citation and Processing Services SECTION G: EXHIBIT M — NONCOLLUSION AFFIDAVIT EXHIBIT N CITY OF SANTA ANA REMST FOR PROPOSALS FOR AUTCIMATfD PARKING 017ATION ANO PROMSING SERVICES i' ONGOLLUSION AF'F1L1'AVIT t!,(,LML tJ A L1QA—V4 tilde 23 United ;'states Carla Seciton 112 and faOW01 Contract Gude Sootion 7't cS} To the CITY OF SANTA ANA In aceordoru a vuith Title 4 United States Cade 6eotlon 4 fit daclaras that tics proposal is not made in the InAemal of, at h company, amoodatlan, organfaation, or aorpnratlon; that the p the propotmr Oras not dfroody or Indirectly Induced or solicited proposal, end hes not directly or Indirectly 0cifudcd, conspired artyona also to put in s. sham proposal, What anyone shall s any manner, directly or Indirectly, sought by agreement, cam pmpossl price or the proposer or any proposer, or Infix any o infer, Of of that Of ally other propcssr, or to secure any advan e:0ntract of anyone Interested in the proposed cardroot; that a and, further, that the proposer has not, directly orindiraritly, sr braekdown thereof, or Ilya contents thereof, or divuluod Inform pay, any fee to any corppctt r ember or agent thereof to rand Public Granvact Code 7100 the proposal n geftrtif of, any Undtscl'ctad perslsn, pair atshdls, YOPOS41 is patrufrte and Mei 0ollutiva or sham; MA any other proposes to put In a false or sham , connived or agreed with any proposer or strain front bldding; that the prnpns'or Erna not in munioo0on, or confercence Oth anyone to fix the MOO. nrolit or Cott element of Elie mmnoesal proposal, Me con efflea in Ina proposal are true: hie or her proposal price or any data ralnalya thereto. or gold, and H not larrWill ln, bid depoailory, or to any Note: 7'ha aCrpve s 0noctfutlan afrrclavit Ce part rf rile propesaf, Signing this proposal onfha 019nature porilon themof oftall 4140 constitute sipnatum of this noncollusion atndavit, Prapossom fate onutloned that making a false certification may subJeet the cerfiflsrto ertamfruxl presmoull0n. Signed State 0f Callforntn, County Subscribed and swhun to (or sfitrmad) bsr0rs nts An Ctdtt 2.5„fir �„ day oi_gA kMLm.�..,, at „�, try it . tjt> tea r fi proved to cne on the basis Of satts?tmctortr evIdsnam to las Ilia caromj who appeorad before ana. factory tc Sf�ntu o �' d Y7R MA y C,QMK 02124872 I. Puplla•W111wnt� npq� tqr Notary Pwb@c $eel Proprietary and Confidential to Data Ticket, Inc. 25G-58 341Pa9a Data Ticket, Ina Newport Reach, CA 0: 949 752.6937; F: 949 752-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services SECTION F9: EXHIBIT I — SAMPLE ADDITIONAL INSUED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILTY POLICY SSI t12IT I. OrrY OP SANTA ANA REQUEST FOR PROPOSAIX FOR AUr0fdA'MI) PARKIKO CITA110N.,AND PROOVOWNta StERVIOUs SAM'PLC ADDITIONAL INSURED PNOORSEMNNT FOR COMWERCIAL QVINSKAL LIABILITY POLICY InsuranceCarnpatay,� AmanInference Com enV .......� _.. ____w_, -.._...,.,.._._._........u.„,,..,.,. THa arndamemeni modilloe sash Insaaranoa ea Is orfurdotl by the provialons of MolloytdACWOP030274'2.780 rafatintl to tha,foilovvirrg: 1, i'ha City o9 Santa Ana, 20 Civic Cantor Miami, Santa Ana, California 92709: its ofsaera, emploveaa, adonta, vgdiunte.ra and fo rownwivea are named as addtticnel €naursdS ("M01601)al IIISM ) with regard to Iletrllliyold dosrema ofaulta orlsing from ft operations and vaeaperformed by or an bahsliof the named InstoNsd. d, with raspeot to *ffms aerlsins7 out of the oparadanm and 0068 parforntOd by or on behalf of thw named lnr+urod, aiARh Insummas eu fe, artardod by brio pnlicy to prbnary and fa not additbnal to or rnntrlbutintg volt} any other 6ruumnoe oon•lod by orlor the bontAflt or the edridlonot ineuredw, 3. Thla Inatuvrvr applies eeparatoly to eraoh Insured against whom otaim is naeda or Suit Is brought except v+lil9 smspeai to t@�b eornpany"o 7lmita at Ilakdl lty. Tiro hole alon orally parson orors+entzatian ae an Insured khatl notxaffeet ally itpf4 vdtiod) such poroolr ar olganization would have es A clelmont in not en IerSudcus9. 4. with respeot tithe additlonal nisurads, thla insurances shod) not ba wrloWled, or metorlalty rodueed In aavera90 of limfeexcepi After Ihhhr 00) sdrr,Srswrltlen nra0ca Ices twpn rylvtm to the City of Salto Ana, 20 Olvtc Confer Plaza, Santa Ana, California MO. (Comtaletlon of the follmving, 4tctuding tXtuntoralgnettrra, Is required to mmiss dile andortlemont pffealve,j X'fd47Wdva ....- 1'tf4YJ.e16 ..., ...,..,.T .,.,,�,....„.....,„, thin andurnornonlform as a pari of Polley#„..,,, lesuati io Date l aket, Inca, DRA: Revenue hxoedo countersi C ly et Eania Me - Autor m6d Pnrklerg CUMinn and proeasslna grvYrs�q f ?rt�'1T 1 Ip) Mnpn 33 Proprletary and Confidential to Data Ticket, Inc. 35.Page 25G-59 Data Ticket, Inc. Newport Beach, CA 0: 949 752.6937; F: 949 752-6033 City of Santa Ana Request for Proposals for Automated Parking Citation and Processing Services SECTION 1: ADDENDA ACKNOWLEDGMENT Brook101.1 Wesfico QUESTIONtt +7, RO„Ut& RECfkVLp 4N 30 03 1S (n� 33a�0,-„ISours mvt�i.�nasic3xw eros Below are questions regarding the City's RFP 16-116 Automated Parking Citation and Processing services. Exhibit A Software Specifications 1. Can new handheld units be Proposed? Yes 2. Canthe department please provided specs on the HP/Compaq IPACi? Addendum to follow -most mobile platforms vrithtouch screen capability. S. Are the current units under warranty? No 4. Can scanned sample of your citations can be provided? Attached Line item 5 - Out of State Registered owner Retrieval from State DMV 1. How many notices were mailed in 2014. and 2015?2014-2015-1,401 2. How many notices were mailed to violators in Mexico and Canada? None S. How many citations were issued to"Out Of country' vehicle owners Infonotavailable 4. How many citations were issued to vehicles that were rentals?:L3 Line items 6 -DMV Registration hold/Releases I. How does. the City/Departmentcurrently access the pMV CLET$ Line Item 7 -Automated processing of Administrative Review Requests 1. What is your current process for Administrative Review Requests and processing? Citizen contests ticket, tike is suspended pending revievt,. letter issued with disposition 1 How many Administrative Review's did the Department have in 2014 and 2015?2014-8,771 2015-5,129 3. How manyAdministrative Reviews were printed and mailed in 2014 and 2035? 2014-4,212 2015-5,297 Exhibit B User interface Una item I 1. Please provide citation sample front and back Attached Additional questions 1. Numberof parking citations issued In 2014and 2015? 2014-74,1812015-85,659 2. Range offices?590-$376 S. Range Of penalties? NA 4. Revenue for parking citations In 2014 and 2015 2014.54,501,529.00.2015-$5,553,508.00 5. Total number of unpaid citations in 2014 and 2015?2014.201541,241 6.. Approximate value of unpaid citations of 2014 and 2015?Amount -$4,727,150.10 7. Does the Department issue waming citations? No R. Number of persons assigned exclusively to isuing parking citations? 11 city staff arid l2 contracted staff 9. Number of locations where persons Who Issue parking citations report? 2 Proprietary and Confidential to Data Ticket, Inc. 25G-60 361 Page •-N4 "�N DATE(MWOONYY _.-- TIFI A°T CSF LIABILITY INSURANCE 12/6/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUINO WSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE 11 ii:CERTIFICATE HOLDER. IMPORTANT: II the cert(tlCefe holder is an ADDITIONAL INSURED, the 1: 1! cy(fos, muehbe endorsed. If SUBROGATION IS WA1 11: sub)eut to the terms and Conditions of the PoInY, certain Policies may require an entlo,sement. A statement on fhfs cartfficme does not co Certificate holder W lion of Such endorsement($). nte, rlgHts to the PELLETT INSURANCE SERVICES INC 2985 Theatre Drive, Ste 5 Paso Robles, CA 93446 OR2721820 DBA; Revenue Experts 4600 Campus Dr., Ste, 200 Newport Beach, CA 92660 I r NSTANDING ANY REQUIREMENT, TERM OR CONDIRON I. OFF BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED E ONOITIONS OF SUCH POLICIES_. LIMITS SHOWN MAY HAVE SEEN i'h TYPE OF INSURANCE eC COMMEACIAL OENMAL UARMY _..I CLAWS -MADE O OCCUR A C�EN'L AGGREGATE DMR APPLIES PER; POLICY 0 JREBT � LOC OTHER: AUTIX40BILE UASILDY ANYAUTO ALL OWNED SCHEDULED A AUTOS AUTOS X{ HIRED gUT05 �( NONAWNF,D AUTOS X UMBRELLA I_IAB OCCUR A EXCESS LOB X1 Y JACPBP03027427618 ACPCAA3027427618 6 7 TO WHICH THIS ALL THE TERMS, IT IS AGREED THAT THE CERTIFICATE HOLDER LISTEDs�BELOW YBy0eI IS IINCLUDEDgNAS)ADDITIONAL INSURED INCLUDING A WAIVER OF SUBROGATION, AS REQUIRED BY WRITTEN CONTRACT, BUT SOLELY AS THEIR INTERESTS MAY APPEAR IN ACCORDANCE WITH THE PROVISIONS OF THE POLICY FORM. THIS INSURANCE IS PRIMARY & NON—CONTRIBUTORY. If//�Rope/) Pie A6hFth�vr 's City of Santa Ana, its officers, SHOULD .ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE employees, 8[xt+nt5, V011lnt43Grd, 8k1i3 THE EXPIRATION DATE THEREOF, NOTICE WILL SE pELIVERED IN repres antatives, Police Department ACCORDANCE WRH THE POLICY PROVISIONS. 60 Civic Center Plaza Huth IZED REP"'P"ATrv,4,,, P.O. Box 1981 Santa Ana, CA 92702 i 1 t } 4 ACORD25(2014101) The ACORD name sad logo are registered maria Of ACOHD 25G-6 Client#: 12154 DATTI ACORU, CERTIFICATE OF LIABILITY INSURANCE DATE 1 POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR 1 0/1 412 01 6Y PRODUCER ._......._ _- THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Ashbrook•Clevldence,.Inc. 3000 W. MacArthur Blvd., #320 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR. ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. License #0188788 Santa Ana, CA 92704 INSURERS AFFORDING COVERAGE NAIC # INSURED µ INSURER A: CA State Comp. Ins. Fund Data Ticket, Inc. dba: Revenue Experts 4600 Campus Drive #200 INSURER B: Continental Casualty Ins, Co. INSURER C: Scottsdale Insurance. Co. Newport Beach, CA 92660 INSURER D: INSURER E' COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR NSR TYPE OF INSURANCE POUCYNUMBER ' LTCG EFFECTIVE DDIYY L PO C .EXPIRATION DATE M D Y LIMITS_ GENERAL LIABILITY EACHOOCURRENCE S COMMERCIAL GENERAL LIABILITY CLAIMSMAOE F_] OCCUR OPRTO RENTED I�F„$„(�y;�curcenCel $ MED EXP(Any one person) $ PERSONAL ADV INJURY S. GENERAL AGGREGATE S GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OPAOG S4 POLICY JCOT LOC AUTOMOBILE LIABILITY ANY AUTO _ COMBINED SINGLE LIMIT Ea accident) $ BODILY INJURY .,. (Perpersen) S ALL OWNED AUTOS SCHEDULEDAUTOS BODILY INJURY (Perecedenl) T $ HIREDAUTOS NON.OWNEDAUTOS PROPERTY DAMAGE (PeraccidenU $ GARAGE LIABILITY AUTOONLY-EA ACCIDENT $ EAACC $ ANY AUTO $ AUTOOHAN AUTO ONLY. AGG_ EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE S _4 AGGREGATE $ OCCUR CLAIMS MADE S $ DEDUCTIBLE $ RETENTION S A WORKERS COMPENSATION AND 90657312016 07112/16 07112117 XSTAN- EMPLOYERS'LIABILITY ANY PROPRIETOR/PARTNERIEXECUTIVE E.L. EACH ACCIDENT S1,000,000 E. L. DISEASE -EA EMPLOYEE 51 DDD DDD OFFICERNCMBER EXCLUDED? YES n Yyes, descrlbe undor SPECIALPROVISIONS below E.L. DISEASE- POLICY LIMIT 1514000,000 B OTHER Errors & Omm 287188360 11/01116 11/01/17 $2,000;000 C Perrsonal & Add EKS3202384 11/01116 11/01/17 $2,000,000 C Cyber Liability EKS3202384 11/0/116 11/01117 $2,000,000 DESCRIPTION OF OPERATIONS/ LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT) SPECIAL. PROVISIONS Certificate evidences current policies of Workers Compensation with Blanket Waiver of Subrogation attached and Professional Liability (Errors & Omissions)Including Personal & Advertising injury Liability and Cyber Liability !p''Rov"� Data Ticket, Inc DBA: Revenue Experts 4600 Campus Drive Suite # 200 Newport Beach, CA 92660 ACORD 25 (2001/08) 1 Of 2 9$29783/M29782 ANY OF THE ABOVE dF AMED POLICIES BE CANOELLED BEFORE THE EXPIRATION IEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL _30DAYS WRITTEN TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR 25G-62 1988 IMPORTANT If the certlflcate holder Is an ADDITIONAL INSURED, the polloy(les) must ba endorsed. A statement on this certificate does not confer rights to the certificate holder In Ileu of such endorsement(s), If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s), DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORID 25-8 (2007108) 2 of 2 #S29783IM29782 25G-63 ENDORSEMENT AGREEMENT WAIVER OF SUBROGATION BLANKET BASIS HOME OFFICE SAN FRANCISCO EFFECTIVE JULY 12, 2016 A'1 12.01 A.M. ALL EFFECTIVE DATES ARE AND EXPIRING JULY 12, 2017 AT 12.01 A.M. AT 12:01 AM PACIFIC STANDARD TIME OR THE TIME INDICATED AT PACIFIC STANDARD TIME DATA TICKET INC 4600 CAMPUS DR STE 200 NEWPORT BEACH, CA 92660 WE HAVE THE RIGHT TO RECOVER OUR PAYMENTS FROM ANYONE LIABLE FOR AN INJURY COVERED BY THIS POLICY. WE WILL NOT ENFORCE OUR RIGHT AGAINST THE PERSON OR ORGANIZATION NAMED IN THE SCHEDULE. THIS AGREEMENT APPLIES ONLY TO THE EXTENT THAT YOU PERFORM WORK UNDER A WRITTEN CONTRACT THAT REQUIRES YOU TO OBTAIN THIS AGREEMENT FROM US. THE ADDITIONAL PREMIUM FOR THIS ENDORSEMENT SHALL BE 2.00% OF THE TOTAL POLICY PREMIUM. SCHEDULE PERSON OR ORGANIZATION ANY PERSON OR ORGANIZATION �i FOR WHOM THE NAMED INSURED HAS AGREED BY WRIT'T'EN CONTRACT TO FURNISH THIS WAIVER SOB DESCRIPTION BLANKET WAIVER OF SUBROGATION 9068731-16 RENEWAL NA 2-71-67-20 PAGE 1 OF 1 NOTHING IN THIS ENDORSEMENT CONTAINED SHALL BE HELD TO VARY, ALTER, WAIVE OR EXTEND ANY OF THE TERMS, CONDITIONS, AGREEMENTS, OR LIMITATIONS OR THIS POLICY OTHER THAN AS STATED. NOTHING ELSEWHERE IN THIS POLICY SHALL BE MELD TO VARY, ALTER, WAIVE OR LIMIT THE TERMS, CONDITIONS, AGREEMENTS OR LIMITATIONS OF THIS ENDORSEMENT, COUNTERSIGNED ANDISSUED AT SAN FRANCISCO: AUTHORIZED REPRESENT IVE e rye en unn ,naev loco von lel JUNE 1, 2016 25G-64 PRESIDENT AND CEO. 2572 BUSINESSOWNERS PB 04 48 1114 THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies Insurance provided under the following: PREMIER BUSINESSOWNERS LIABILITY COVERAGE FORM A. The following is added to Section II. WHO IS AN INSURED: Any person or organization shown In the Schedule of this endorsement is also an Insured but only with respect to liability for "bodily Injury", "property damage" or "personal and advertising injury" caused, in whole Cr in part, by your acts or omissions or the acts or omissions of those acting on your behalf In the performance of your ongoing operations or In connection with your premises owned by or rented to you, However: 1, The Insurance afforded to such additional Insured only applies to the extent permitted by law; and 2. If Coverage, provided to the additional insured is required by a contract or agreement, the Insurance afforded to such additional Insured will not be broaderthan that which you are required by the contract or agreement to provide for such additional insured, B, With respect to the insurance afforded to these additional Insureds, the following is added to Section III. LIMITS OF INSURANCE AND DEDUCTIBLE: If coverage provided to the additional Insured is required by a contract or agreement, the most we will pay on behalf of the additional Insured Is the amountof insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits Of Insurance shown in the Declarations; whichever Is less. This endorsement shall not Increase the applicable Limits Of Insurance shown In the Declarations. C. This Insurance, Including any duty we have to defend "suits", does not apply to: 1. "Bodily injury" or "property damage" that arises out of, in whole or In part, or is a result of, In whole or in part, the active negligence of the additional Insured shown In the Schedule of this endorsement. 2. "Personal and advertising Injury" that arises out of any independent "personal and advertising injury" offense committed by the additional insured shown In the Schedule of this endorsement. . All terms and conditions of this policy apply unless modified by this endorsement. SCHEDULE Name Of Person Or Organization: WHEN REQUIRED BY A WRITTEN CONTRACT N/A PB 04 48 1114 ACP BPO 3027427010 Includes copyrighted mnterlai of Insurance Servlces OfFlce, Inc., with its permission. AGENT COPY 25G-65 Page 1 of 1 47 36415 BUSINESSOWNERS PB 04 97 07 07 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE REACT IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This sndorsernent modifies Insurance provided under the followhig: PREMIER BUSINESSOWNERS COMMON POLICY CONDITIONS SCHEDULE Name Of Person Or Organization: WHEN REQUIRED BY A WRITTEN CONTRACT In condition K. TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US, under paragraph 2, Applicable to Businessowners Liability Coverage, the following paragraph is added: We waive any right of recovery we may have against the person or organizetlon shown In the Schedule above because of payments we make for Injury or damage arising out of your ongoing operatlons or "your work" done under a contract with that parson or organization and Included in the "products•completed operations hazard". This waiver applies only to the person or organization shown In the Schedule above. All terms and conditions of this policy apply unless modified by this endorsement. Includes copyrighted material of Insurance Services Office, Ino„ with Its permission. 91St Properties, Ino., 2004 PB 04 97 07 07 ACP BPO 302742761a AGENT COPY 25G-66 Page 1 of 1 47 88424 BUSINESSOWNERS PR 00 72 07 11 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE REAL) IT CAREFULLY, This endorsement modifies Insurance provided under the following; PREMIER BUSINESSOWNERS COMMON POLICY CONDITIONS Only with respect to any additional insured, In the COMMON POLICY CONDITIONS, form PB 00 09, under condition H. OTHER INSURANCE, paragraph 2,a. is replaced by the following: H. OTHER INSURANCE 2, Under any Ilabllfty coverage provided by this policy, a. If for Injury or loss we cover, there is Other valid and collectible insurance avallabIs to any additional insured under another policy, our obligations are llmlted as follows: (1) Issued by another Insurer, or if there Is Self insurance or similar risk retention that applies to a loss covored by this policy, then this inauranoe provided by us shall be axoess over such other Insurance, unless you have agreed In a written contract or written agreement signed prior to the loss that this Insurance shall be primary: (a) Then this insurance is primary. If other insurance is also primary, we will share with all that other insurance as described in d, below; and (b) The coverage afforded by this insurance is non-contributory with the additional insured's own insurance, Paragraphs (a) and (b) do not apply to other insurance to which the additional Insured has been added as an additional Insured to any other person or organization's policy,; or (2) Issued by us or any of our affiliate companies, that applies to a loss covered by this policy, then only the highest applicable Limit of Insurance shall apply to such lose, This condition does not apply to any policy Issued by us that is designed to provide Excess or Umbrella liability insurance. All terms and conditions of this policy apply unless modified by this endorsement. PB 00 72 07 11 Includes copynghted material of Insurance SG Vlces Offi Inc., with its permiosion, Page oft 25G-67 25G-68 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE; FEBRUARY 7, 2017 TITLE; DONATION AGREEMENT WITH JAGUAR DIAMOND BOOSTER CLUB TO SUPPORT A BASEBALL GAME (STRATEGIC PLAN NO. 5,4) CITY IUNAGER RECOMMENDED ACTION CLERIC OF COUNCIL USE ONLY: ►:112i 001 ® As Recommended ® As Amended 0 Ordinance on tst Reading 0 Ordinance on 2" Reading ❑ Implementing Resolution M Set Public Hearing For, CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Jaguar Diamond Booster Club for a one-time donation amount of $2,000, subject to non -substantive changes approved by the City Manager and the City Attorney. DISCUSSION On August 4, 2015, City Council adopted Resolution 2015-042, establishing a City Special Event Sponsorship Policy and Guidelines for Disbursement of Discretionary Funds. The resolution and policy outline the eligibility criteria for neighborhood associations and eligible non-profit entities for consideration of City Council sponsorship. In accordance with this policy, each Councilmember is allowed to appropriate up to $10,000 per fiscal year to support eligible organizations, including neighborhood associations and non-profit organizations. Eligible organizations that are not tax exempt under section 501(c)3 of the Internal Revenue Code are eligible for in-kind funding for City Services. Councilmember Tinajero recommends appropriating $2,000 to the Jaguar Diamond Booster Club to support an event to be held on Friday, March 17, 2017, in response to their donation request (Exhibit 1). Upon approval of this item, a donation agreement (Exhibit 2) will be executed. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (support neighborhood vitality and livability). 29A-1 Donation Agreement with Jaguar Diamond Booster Club February 7, 2017 Page 2 FISCAL IMPACT Funds to support the City Council Special Event Sponsorship Policy are available in the Fiscal Year 2016-17 General Non -Departmental account (01105015-62300). The $2,000 will be spent from Councilmember Tinajero's appropriated amount for FY 2016-17. APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency Exhibits: 1. Donation Request Form 2. Donation Agreement 29A-2 City Manager's Office - M-31 City Of Santa Ana 20 Civic Center Plaza L„?":li Donation Request P.O. Box 1988 Santa Ana, CA 92702 - (714) 647-5200 Contact a s rame:T Y— (Laurie Tristan s ide: Treasurer Address: 942 W Carol Ave City, state, zip: Santa Ana, CA 92707 Phone: 714-356-3446 Email: Jaguarbaseballboosters@gmail.com T(Fax: 7_ .. jjrjization information j• Name — Jaguar Diamond Booster Club Tax-Exempt Status: Is your organization a non-profit or public tax-exempt organization as defined under Section 501(c)(3) of the Internal Revenue Code? Select One: Yes ❑ No If No, you will only qualify for a credit for City-related costs for your request (l. e. permit fees,"----- staff time, rental rates for facilities or equipment,etc.). Costs for City services vary and if 46-4526131 approved, credit may or may not cover full cost of requested City services. IITr ax ID#: bortation Request City Services Credit Irby sn�a Date Needed: Apri12017 .(Mayor/Councilmember: r Tinajero mount Requested fDirect Payment Amount I-.._T __._.r--.---r----- 52 000 Event Date: March 17, 2017 Event Time: 3:00 pm Requested: Event Location: seg erstrom High School, 2301 W MacArthur Boulevard, Santa Ana, CA 92704 Address, City, State, Zip — Segerstrom High School Baseball program, comprised of 60playersand6coaches, is one of the top baseball programs in the City of Santa Ana. To maintain and Description of strengthen the skills of our student athletes, all teams (Frosh/Soph, JV, Varsity) play in leagues and tournaments year round. Due to limited funding our prognem receives from the school district, our parent booster group looks to community sponsors to enhance and support our student-athletes and baseball program. The EVent/PnrpOse: donation of funds from the City of Santa Ana would go toward suffering the purchase of new game jerseys for our student athletes. Our players and coschestekegreal pddein re presenting Segerstrom at on and off campus events. Participating in baseball teaches our boys teamwork, good sportsmanship, builds corrections and self-esteem, and provides a safe environment to participate in a sport that they lave. This event will be attended by our 00 munity Benefit: FC. student athletes, as well as our larger school community. Playing in new jerseys will encourage team bonding and bring pride to our boys and program. The event further allows for increasing school spilt and building community within our larger Segerstrom family approximately 1000 Segerstrom studentelparents/staff are expected to attend in support of Segerstrom Baseball. Applicant Signature:: �./l ix,t ii,GLcrdy�J. tDate: ` January 12, 2017 Return CtDmp!6ted&rm Via. Mail: City Manager's Office-M-31 Email: danationrequest@sante-ana.org ^- 20 Civic Center Plaza Fax: (714) 647-6954 P.O. Box 1988 Santa Ana, CA 92702 Donation Request #: Reference # on all related DPVs DR Council Meeting Date: ., ' Eligibility Mei: City Manager Signature: YES / NO I Approved Amount: _EXH].BIT '__.�ate: —� Revised 01/05/2017 29A-3 29A-4 CITY OF SANTA ANA DONATION AGREEMENT WITH JAGUAR DIAMOND BOOSTER CLUB 1. PARTIES AND DATE This Donation Agreement ("Agreement") is entered into on FEBRUARY 7, 2017 by and between the City of Santa Ana, a nunicipal corporation ("City") and JAGUAR DIAMOND BOOSTER CLUB, a California 501(e)3 NON-PROFIT ORGANIZATION ("Recipient"), City and Recipient are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement. 2. RECITALS 2.1 Community Benefit. The City wishes to provide Recipient with funding to assist Recipient in HOSTING A BASEBALL GAME ("Community Benefit"). The Parties wish to enter into this Agreement to establish the terms and conditions under which the City will provide finding. 2.2 Public Purpose. The City, by recommendation of COUNCILMEMBER SAL TINAJERO, believes there is a public purpose in supporting the Community Benefit because it will PROMOTE HEALTH AND WELLNESS BY PROVIDING AN OPPORTUNITY FOR STUDENTS TO ENGAGE IN PHYSICAL ACTIVITY AND SPORTS. The foregoing is a general description of the public purpose, and is not necessarily the only public purpose to be gained from the Comirramity Benefit, 3. TERMS AND CONDITIONS 3.1 Use of Funds. The City has chosen to provide Recipient with a one-time payment of TWO THOUSAND DOLLARS ($2,000) for an event that will be held on Friday, March 17, 2017, because the City has determined that there is a public purpose to be served in supporting the Community Benefit. In executing this Agreement and receiving the funds, Recipient agrees to use the funds only for the purpose described and subject to the terms and conditions provided, for in this Agreement. Should Recipient fail to use the funds for such purpose or otherwise comply fully with the terms of this Agreement, City shall have the right to terminate this Agreement and demand the return of the funds pursuant to Section 3.2 below. 3.2 Term, Termination of Agreement. This Agreement shall take effect on the date first above written and remain in effect through Recipient's full expenditure of the funds. The City has the right to terminate this Agreement upon one day's notice, with or without cause. Should the City terminate this Agreement, it shall also have the right to demand the immediate return of all finds provided to Recipient puursuant to this Agreement, as well as interest at the rate of ten percent (10%) per annum. Notwithstanding the foregoing, the indemnification provisions of this Agreement shall survive any expiration or tennination of this Agreement. 3.3 Waivers. Insurance or Other Obligations. For purposes of the City's protection, if the City determines that the funds will be used for a purpose which may cause a significant risk of EXHIBIT L 29A-5 CITY OF SANTA ANA DONATION AGREEMENT Page 2 of 3 injury, the City may, in its sole discretion, require Recipient to provide certain insurance and participant waiver/release protections. This right shall be on-going and may be implemented by the City at any time, and all insurance and waiver/release forms shall be provided on forms, in amounts and with provisions acceptable to City. 3A No Oversight by City. Nothing in this Agreement shall be implied or interpreted as City establishing or providing oversight, control or approval of the Community Benefit or any activities conducted by the Recipient, 3,5 Indemnification, Recipient understands, acknowledges and agrees that Recipient shall assume all risks associated with the Community Benefit, including, but not limited to, the possibility of death or serious trauma or injury. To this end, therefore, Recipient shall defend, indemnify and hold City and its officials, officers, employees, agents and volunteers free and harmless from and against any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any and all acts, omissions, willful misconduct or other activities of the Recipient or its officials, officers, employees, agents, guests, participants attendees, and contractors, including the performance of the Community Benefit or this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. The only exception to the Recipient's obligations hereunder shall be for claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries caused by the sole negligence, sole willful misconduct or sole active negligence of the City. Recipient shall defend, at Recipient's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers, employees, agents, or vohinteers. Recipient shall pay and satisfy any judgment, award or decree that may be rendered against the City or its officials, officers, employees, agents, or volunteers, in any such suit, action or other legal proceeding, Recipient shall reimburse City and its officials, officers, employees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Recipient's obligation to indemnify shall not be restricted or limited by insurance proceeds, if any, received by the City, its officials, officers, employers, agents or volunteers. The indemnification provisions of this Agreement shall survive any expiration or termination of this Agreement. 3.6 Entire Contract/Modification. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. The terms and conditions of this Agreement may be altered, modified or amended only by written agreement signed by both Parties. 3.7 Authority to Enter Agreement. The person executing below on behalf of Recipient represents and warrants that the Recipient has all requisite power and authority to conduct its business and to execute, deliver and perform this Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to make this Agreement bind each respective Party. EXHIBITI 29A-6 CITY OF SANTA ANA DONATION AGREEMENT Page 3 of 3 RECOMMENDED FOR APPROVAL In Robert C. Cortez Deputy City Manager City Manager's Office CITY OF SANTA ANA By: Gerardo Monet Acting City Manager Attest: 0 Maria D, Huizar Clerk of the Council Approved as to Form: By: %9r, J M. Funk Assistant City Attorney JAGUAR DIAMOND BOOSTER CLUB a 501(c)3 NON-PROFIT ORGANIZATION By: Signature Name Title EXHIBIT Z, 29A-7 29A-8 CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: DONATION AGREEMENT WITH MEXICAN - AMERICAN WOMENS NATIONAL ASSOCIATION OF ORANGE COUNTY TO SUPPORT A LEADERSHIP CONFERENCE (STRATEGIC PLAN NO. 5,4) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Mexican - American Womens National Association of Orange County for a one-time donation amount of $1,000, subject to non -substantive changes approved by the City Manager and the City Attorney. DISCUSSION On August 4, 2015, City Council adopted Resolution 2015-042, establishing a City Special Event Sponsorship Policy and Guidelines for Disbursement of Discretionary Funds. The resolution and policy outline the eligibility criteria for neighborhood associations and eligible non-profit entities for consideration of City Council sponsorship. In accordance with this policy, each Councilmember is allowed to appropriate up to $10,000 per fiscal year to support eligible organizations, including neighborhood associations and non-profit organizations. Eligible organizations that are not tax exempt under section 501(c)3 of the Internal Revenue Code are eligible for in-kind funding for City Services. Mayor Pro Tem Martinez recommends appropriating $1,000 to the Mexican -American Womens National Association of Orange County to support an event that will be held on Saturday April 22, 2017, in response to their donation request (Exhibit 1). Upon approval of this item, a donation agreement (Exhibit 2) will be executed. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (support neighborhood vitality and livability). 29B-1 Donation Agreement with Mexican -American Womens National Association of Orange County February 7, 2017 Page 2 FISCAL IMPACT Funds to support the City Council Special Event Sponsorship Policy Year 2016-17 General Non -Departmental account (01105015-62300). from Mayor Pro Tem Martinez' appropriated amount for FY 2016-17. APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director C Finance and Management Services Agency Exhibits: 1. Donation Request Form 2. Donation Agreement 29B-2 are available in the Fiscal The $1,000 will be spent City of Santa Ana Donation Request Name: M. Nellie Kaniski Title: Address: 1614 W. 9th Street City, State, ZIP: Santa Ana, CA 92703 Phone: Email: nelliel<c@roadrunner.eom Fax: City Manager's Office-. M-31 20 Civic Center Plaza P.O. Box 1989 Santa Ana, CA 92702 (714) 647-9200 Executive Director, MANIA 714-914-6502 Name:Mexican-American'Wornens 'National Association of Change County Tax -Exempt Status: Is your organization a non-profit or public tax-exempt organization as Select One: defined under Section 501(c)(3) of the Internal Revenue Code? ® Yes No If No, you will only qualify for a credit for City -related costs for your request (i. a, permit fees, if Yee, staff time, rental rates for' facilities or equipment, etc.). Costs for City services vary and if 68-0552012 approved, credit may or may not cover full cost of requested City servicea Tax ID 0: , City Services Credit $ Date Needed: Mayor/Counclimember: Martinez Amount Requested: DirecttAmount Requested;ted: $1,000 Event Date: April 22 2017 Event Time: 8 am - 4 pm Event Location: Santa Ana College, 1530 W. 17th address, city, state, zip Santa Ana, CA 92706 Description of The 26th Annual Adelante Young Women's Educational Leadership Conference, Event/Purpose: High school student outreach, to promote higher education, By supporting self confidence, encouraging higher education, sharing career opportunities in STEM Community Bonefit: fields along with financial aid and scholarship information, a community of learners --students will thrive; our community will thrive -it can became a elf sufficient, educated and aware society. Applicant signature: ;(Y Date: December 6, 2016 Mail: City Manager's Office—M-$1 Email: donationrequest@santa-ana,org 20 Civic Center Plaza Fax: (714) 6478954 P.O. Box 1988 Santa Ana, CA 92702 �J r-1"Cr Ftr _st'd- rk<' IW IA,• 'lEtt :'ai {QL ki3?-1 .-__-�.. EXHIBIT 1 Revised 11/16/2015 r•- CITY OF SANTA ANA DONATION AGREEMENT WITH MEXICAN -AMERICAN WOMENS NATIONAL ASSOCIATION OF ORANGE COUNTY 1. PARTIES AND DATE This Donation Agreement ("Agreement") is entered into on FEBRUARY7, 2017 by and between the City of Santa Ana, a municipal corporation ("City") and MEXCIAN-AMERICAN WOMENS NATIONAL ASSOCIATION OF ORANGE COUNTY, a California 501(c)3 NON- PROFIT ORGANIZATION ("Recipient"). City and Recipient are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement. 2. RECITALS 2.1 Community Benefit. The City wishes to provide Recipient with funding to assist Recipient in HOSTING THE 26T11 ANNUAL ADELANTE YOUNG WOMEN'S EDUCATIONAL LEADERSHIP CONFERENCE ("Community Benefit"). The Parties wish to enter into this Agreement to establish the terms and conditions under which the City will provide funding. 2.2 Public PWpse. The City, by recommendation of MAYOR PRO TEM MICHELE MARTINEZ, believes there is a public purpose in supporting the Community Benefit because it will PROMOTE HIGHER EDUCATION, FINANCIAL AID, AND CAREER OPPORTUNITIES FOR HIGH SCHOOL STUDENTS. The foregoing is a general description of the public purpose, and is not necessarily the only public purpose to be gained from the Community Benefit. 3. TERMS AND CONDITIONS 3.1 Use of Funds. The City has chosen to provide Recipient with a one-time payment of ONE THOUSAND DOLLARS ($1,000) for an event that will be held on Saturday, April 22, 2017, because the City has determined that there is a public purpose to be served in supporting the Community Benefit. In executing this Agreement and receiving the funds, Recipient agrees to use the funds only for the purpose described and subject to the terms and conditions provided for in this Agreement. Should Recipient fail to use the funds for such purpose or otherwise comply fully with the terms of this Agreement, City shall have the right to tezaninate this Agreement and demand the return of the funds pursuant to Section 3.2 below. 3.2 Term; Termination of Apreernent. This Agreement shall take effect on the date first above written and remain in effect through Recipient's full expenditure of the fiords. The City has the right to terminate this Agreement upon one day's notice, with or without cause. Should the City terminate this Agreement, it shall also have the right. to demand the immediate return of all funds provided to Recipient pursuant to this Agreement, as well as interest at the rate of ten percent (10%) per annum. Notwithstanding the foregoing, the indemnification provisions of this Agreement shall survive any expiration or termination of this Agreement. EXHIBIT 2 r•- CITY OF SANTA ANA DONATION AGREEMENT Page 2 of 3 3.3 Waivers, Insurance or Other Obligations. For purposes of the City's protection, if the City determines that the funds will be used for a purpose which may cause a significant risk of injury, the City may, in its sole discretion, require Recipient to provide certavn insurance and participant waiver/release protections, This right shall be on-going and may be implemented by the City at any time, and all insurance and waiver/release forms shall be provided on forms, in amounts and with provisions acceptable to City. 3.4 No Oversight by City. Nothing in this Agreement shall be implied or interpreted as City establishing or providing oversight, control or approval of the Community Benefit or any activities conducted by the Recipient, 3.5 Indemnification. Recipient understands, acknowledges and agrees that Recipient shall assume all risks associated with the Community Benefit, including, but not limited to, the possibility of death or serious trauma or injury. To this end, therefore, Recipient shall defend, indemnify and hold City and its officials, officers, employees, agents and volunteers free and harmless from and against any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any and all acts, omissions, willful misconduct or other activities of the Recipient or its officials, officers, employees, agents, guests, participants attendees, and contractors, including the performance of the Community Benefit or this Agreement, including without ]imitation the payment of all consequential damages and attorneys fees and other related costs and expenses. The only exception to the Recipient's obligations hereunder shall be for claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries caused by the sole negligence, sole willful misconduct or sole active negligence of the City. Recipient shall defend, at Recipient's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its officials, officers, employees, agents, or volunteers. Recipient shall pay and satisfy any judgment, award or decree that may be rendered against the City or its officials, officers, employees, agents, or volunteers, in any such suit, action or other legal proceeding. Recipient shall reimburse City and its officials, officers, employees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Recipient's obligation to indemnify shall not be restricted or limited by insurance proceeds, if any, received by the City, its officials, officers, employers, agents or volunteers. The indemnification provisions of this Agreement shall survive any expiration or termination of this Agreement. 3.6 Entire Contract/Modifrcation. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements, The terms and conditions of this Agreement may be altered, modified or amended only by written agreement signed by both Patties. 3.7 Authority to Enter Agreement, The person executing below on behalf of Recipient represents and warrants that the Recipient has all requisite power and authority to conduct its business and to execute, deliver and perform this Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to mance this Agreement bind each respective Party. EXHIBIT 2 r•- CITY OF SANTA ANA DONATION AGREEMENT Page 3 of 3 RECOMMENDED FOR APPROVAL By: Robert C. Cortez Deputy City Manager City Manager's Office CITY OF SANTA ANA m Attest: IRm Gerardo MOCIet Acting City Manager Maria D. Huizar Clerk of the Council Approved as to Form; By QrIL /ht/ -t- J n M. Funk Assistant City Attorney MEXICAN -AMERICAN WOMENS NATIONAL ASSOCIATION OF ORANGE COUNTY a 501(c)3 NON-PROFIT ORGANIZATION RE Signature Name Title EXHIBIT 2 29B-7 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: CONDITIONAL USE PERMIT NO. 2016-37 TO ALLOW CONTINUED USE OF A 60 -FOOT HIGH WIRELESS FACILITY FOR ATC SEQUOIA LLC AT 1441 SOUTH VILLAGE WAY - THE DERNA GROUP {STRATEGIC PLAN NOS. 3, 2, 5} CITY MANAGER RECOMMENDED ACTION CLERIC OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 19' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2016-37 as conditioned. PLANNING COMMISSION ACTION At its regular meeting on January 9, 2017 by a vote of 7:0, the Planning Commission adopted a resolution approving Conditional Use Permit No. 2016-37 as conditioned to renew the entitlements for an existing 60 -foot high major wireless "mono -palm" communication facility located at 1441 South Village Way located in the Specific Development No. 85 (SD -85) zoning district. The Planning Commission made no changes to the recommendation outlined in the attached staff report (Exhibit A). DISCUSSION The Derna Group, representing ATC Sequoia LLC., is requesting approval of a conditional use permit (CUP) to renew an existing 60 -foot high major wireless ("mono -palm") communication facility located at 1441 South Village Way. Major wireless communication facilities require approval of a CUP pursuant to Section 41-198.3(b) of the Santa Ana Municipal Code (SAMC). The subject site area is currently developed with a mono -palm, communication equipment enclosure, and two live palm trees that assist with camouflaging the mono -palm. As part of this renewal application, the applicant is being required to replace all deteriorated/faded fronds, paint antennas a darker green to match the color of the surrounding palm trees, and replant vines on wrought iron fence and groundcover along the edges of the facility enclosure. Since the subject facility is an existing communication facility, the City is limited to certain modifications under Section 6409(a) of the Middle Class Tax Relief Act. Therefore, this subject facility is exempt from additional structural alterations. However, the City will condition all new communication facilities to comply with an Importance Factor of 1.5, which is the building 31A-1 CUP No. 2016-37 — ATC Sequoia Wireless Facility at 1441 South Village Way February 7, 2017 Page 2 standard for public safety facilities. This will assure telecommunication facilities are functional and providing cell coverage after a major natural disaster. Full-sized site plans are available for public viewing in the Clerk of the Council Office. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objective #2 (create new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies), and Objective #5 (leverage private investment that results in tax base expansion and job creation citywide). FISCAL IMPACT There is no fiscal impact associated with this action. ^--- Hassan Hagh ni, AI P Executive Director Planning & Building Agency JG:rb M1Conditional Use Permit\CUP No. 2016-37 at 1441 S. Village Way\CUP No. 2016-37.cc Exhibit: A. Planning Commission Staff Report 31A-2 FILEDTITILL PUBLIC HEARING - BY THE DERNA GROUP yY y Y CONDITIONAL y. PERMIT a �� �. Prepared by _JgMC. Guevara ---- - -- Ex cuti 6irectnr ' zwol ina &m kNI 111:4 17 -ala roul APPROVED 13 As I-'e..ciJallf eudtXCI. • As Amended • Sel PLINK Hearing For DEFIED ❑ Applicxanrs Requet t • Staff R-(.*mmendabon CONTINUED TO _ C g -- Planning Manager/ Adapt a resolution approving Conditional Use Permit No. 2016-37 as conditioned. Executive Summary The Darns Group, representing ATC Sequoia LLC., is requesting approval of a conditional use permit (CUP) to renew an existing 60 -foot high major wireless ("mono -palm") communication facility located at 1441 South Village Way. Major wireless communication facilities require approval of a CUP pursuant to Section 41a19&3(1b) of the Santa Ana Municipal Cade (SAMC). The subject site area is currently developed with a mono -palm, communication equipment enclosure, and two live palm trees that assist with camouflaging the mono -palm. As park of this renewal application, the applicant is being required to replace all deteriorated/faded fronds, paint antennas a darker green to match the color of the surrounding palm trees, and replant vines on wrought iron fence and groundcover along the edges of the facility enclosure. Table 1: Project and Location Information Nearest intersection — General Plan Desianation n Ae Mesa Pmper�Size 16,74 acres Existing Site Development The site contains nine buildings with approximately 274,785 square EXHIBIT A 31A-3 Conditional Use Permit No. 2096-37 January 9, 2097 Page 2 item Information _ Zoning Code Sections Affected Use Section 4 of Specific Development 85 (SD-85)_- 6evelopment Standards 1A Specific Development 85 (SCD -85) 2. Sec. 41-198 Wireless Communication facilities Attachments Exhibit 1 (Vicinity Map), Exhibit 2 (Location Map), Exhibit 3 (Site Photo), Exhibit 4 (Site Plan), Exhibit 5 (Enlarged Site Plan), and Exhibit 6Elev_atian) Project [Description The rDerna Group Is proposing to renew the entitlements of an existing 60 -foot high mono -palm wireless communications facility. This facility currently provides cellular coverage and call capacity to the East area of the City. "rhe mono -palm tower was designed to Incorporate fronds that extend four Feet above the top of the panel antennas. The wireless communication facility equipment and antennas are locatedwithin a 300 -square foot area that is enclosed by a six-foot high metal fence and is located at the rear (southeast corner) of the property. In addition, the mono -palm is surrounded by two paIrn trees that assist with camouflaging the stealth facility, At this time, no new or additional antennas or equipment are being proposed by the applicant. Table 2: IDevelooment. Standards Standards Re uired by SAMC & SD -85 Provided 25 feet Front Setback 20 feet Side or Street -Side Setback 2ti feet20 feet — Rear Setback -- 20 feet 20 feet-- Maximum Facility Hemght — 60 feet 60 feet Stealth t7esign — Concealed Structure _Arses Mono -Palm___-- . Site Location that will minimize aesthetic The facility is located at the rear of intrusion the property (southeast corner) and is only visible from the 5P.-55 Landscaping A twenty-four (24) inch box tree The site currently has three (3) and groundcover trees but the groundcover has died. over the years. As part of this application, the applicant Will re lantfiherequredcgroimdcover Equipment Screening trines on the wrought iron fence Applicant will replant vines can the existing wrought iron fence as part of this a licatlon, 31A-4 Conditional Use Permit No. 2016-37 January 9, 2017 Page 3 In January of 2000, the Planning Commission approved Conditional Use, Permit No. 1999-26 to allow the construction of the subject mono -palm and equipment enclosure. Pursuant to SAMC Section 41-198.3(3), a CUP is required for all major wireless communications facilities in the City. Furthermore, Section 41-198.13 states that major wireless communications facilities shall be approved for a period not to exceed five years. Since the adoption of the City's Wireless Communication Facilities Ordinance, Federal actions have changed and now require that cities approve wireless facilities for a period of not less than 10 years. Since the ourrent facility Is now over 10 years old, the applicant is required to apply for a new CUP in order to maintain entitlements for the wireless facility current. Protect Analysis In July of 1998, the City Council adopted Ordinance No. NS -2356, which established regulations for wireless communication facilities throughout the City. Major wireless communication facilities such as this ATC Sequoia LLC, communications facility are required to have a stealth design and to be located In an area that provide the greatest amount of visual screening. The existing wireless communication facility was designed as a mono-paim that exhibits consistency in tree size, character and color to that of the surrounding vegetation and it is located within a gated [eased area. In addition, the wireless facility is surrounded by mature palm trees and Is at the furthermost edge of the property (southeast comer) and only visible off the Costa Mesa Freeway (SR -56), The stealth fronds of the facility remain in place; however, sorne fronds and antenna panels have faded since the facilities construction 16 years ago. As part of this application, the applicant will replace all fronds that have deteriorated and will paint all antennas (a darker green) to match the color of the fronds of the surrounding palm trees, In addition, the applicant will replant vines on the existing wrought iron fence and groundcover as required per CUP No. 1990-26, Pursuant to provisions contained within Section 6409(a) of the Middle Class Tax Relief Act [47 U.S.C. § 1456(a)], local agencies are preempted from requiring additional screening or stealthing of the facility if such screening or stealthing was not required at the time of original construction. Staff believes that replacement of the existing fronds and replanting of vines and groundcover will enhance the appearance of the mono -palm and is in accordance with the Middle Class Tax Relief Act. Furthermore, this location is optimal to provide the coverage necessary for existing and expanding service. The existing facility will continue to provide a benefit to Santa Ana residents, businesses and motorists who subscribe to ATC Sequoia LLC.'s services by continuing cellular and data coverage in the area. The facility wIll be in compliance with Federal law that governs health related issues for wireless facilities, including safety regulations from the Federal Communications Commission (FCC) and Federal Aviation Administration (FAA). 31A-5 Conditional Use Permit No. 20'161-37 January 9, 2017 Page 4 Finally, the use will continue to comply with all provisions pertaining to the construction and installation of wireless facilities identified in Chapter 41 (Zoning Code) of the SAMC and Specific Development No. 85 (SCD -85). The facility will not adversely affect the General Plan as cellular facilities that are designed to be compatible with the surrounding environment are consistent with the goals and objectives of the Land Use Element. -. a F—&EQA. Strategic flan Alignment and PulAc Rotifcation & CommunityClutreach ��- CEQA CEQA Type General Rule Section 15061 b 3 DocuMe a General Rule Exemption ER No. 2Q16-101 L_ _. —seen Reason(s) Exempt Thisexemption applies to projects where it can !a� with certainty that or Analysis there is no possibility that the activity in question may have a significant effect on the environment. This is an existing wireless communication facility and no alterations are being proposed at this time. Furthermore, the facility will comply with FAA and FCC re Mations. Strategic fan Alignment Gaal 3 (Economic Development) T - Goal6 and Policy(s) 1. Objective 2 (create new opportunities for businesafjob growth and encourage private development through new General Plan and Zoning Ordinance policies) 2. Objective 5 (leverage private investment that results in tax base expansion and job creation citywide). Public Notification &:Community Outreach Required Measures A_puhUc noticed was posted on the pr4jppt sste on December 27 2Q1t_r--- t otificatio-n'by mail were mailed to all property owners and occupants within 500 Peet of the project site on December 29, 2016 Newspaper posting was published in the Orange CountyReporter on 'December 3it,2016 The sub eot site is not located avithin the boundaries of a neighborhood asscciation n the anal y i provided within this report, staff recommends that the Planning Commission Condition I se Permit No 2016-37 as conditioned. I JG:jm K9 Condilional Uso PemikkCUP No. 2016-37 at 1441 S. Villaga wa'CUP No. 2016-37.Pc 31A-6 Conditional Use Permit No, 2016-37 January 9, 2017 Page 5 Attachments: Exhibit I — Vicinity Map Exhibit 2 — Location Map Exhibit 3 — Site Photo Exhibit 4 — Site Plan Exhibit 5 — Enlarged Site Plan Exhibit 6 — Elevations 31A-7 R4 , Ml NN ; ml Al C { L 1 Mt All Nm 9 MI 4 t I( y ml _ ml .` JwpsNIG 1 Mi 511-eN srA-€a 51a•ee LU11{4LN ?°4. �P hit M7 SO.69 Fn,r� Sts-tFl ��JII � C"f nl �ul.rt 11� k4 ryf 57-n9 5A1 SD169 td GYYiellrtt d• NLIG{IR1 CSM Sbeit, 1, fl545(REkl CK1Mt1v h4uw0jCt I P Iv 10 GG YELGPMEMI g fn9NlmI MOD"KAt@H - RX)RARAWD IQ'"lu N.iiNHE]ORFY] ML G:'t�J,9['11E°fi C CWYNNIFY CChMMEIAL UC GCYC'nHMENPCFNfli Rt wo,F MIAIN fiCA1NENL C I Mn Ci,'RJjAdNW C6 iK1Jnid41U°$ArA IMM CT im LIKNI I"Mmi1IN. P5 IWO MkIl'Y 0'1MM'll1 Cz CANHIAI.(KAIM69vnL M! KAVM> LWAINL R1 NWLPRL{AMUY R MIDENCL 0 crimla U.8JM[SS mo 4111TARYUPEih1tINN5 Ri RlaUAM APARTMENT CIA CENRA.L 8JNNE55d-Pi173i VIL.AG- C+ OPEVIN9 PIF 91,9I7NrIM1I MATE CA I'.kPIHEP9h'G'P"YdF{•.P4iPP 114 OftHIAI'A]Nk GG 1Pt HG ULYUc3MINI c5 hKIIIIl4'. W%%WILI11 P PAORGSICtChL IP 3fFCPiL PLAia CA 00.09 lCAL ki61LY1N10A. PCU PIANNEU CNAMNIT'e[1EtTMWf,YT CCS 2016-37 MONO -PALM WIRELESS FACILITY(& 14.41 SOUTH VILLAGE WAY � _ SUU FEET t'=tUUOFEEF P L A N N I N G h N ti N U I _G— 0 I N G R G E N_ C Y VICINITY MAP EXHIBIT i 31A-8 N fJ u!rR 1 AL F WILSHIRE AVENUE r - ar kinr S I ! l Parking Volksky"Im t' NSaab rw- '�°� Parkins RVt r L 4 � A Vacant Cvmmomti ,,llh Rre,Clwme+3 ',.. Audi p' Volvo wl zwoinmoirrrealth aV%V Zs d a ` 41iY9Nt x Industrial it MENG,ER NAME °a I N u u i T R I A 1. Honda UP 2016-37 (& MONO -PALM WIRELESS FACILITY 1441 SOUTH VILLAGE WAY y� L 'p. N N 1 N G N Q & 1,1 I — -G I N G A G E N LAND USE MAP EXHIBIT 2 31A-9 CLIP 20101-37 MONO -PALM WIRELESS FACILITY 1441 SOUTH VILLAGE WAY EXHI@IT 3 SITE PHOTOS 31A-10 .._ 0VERALL8[TLFLAN s, q w: Al ".aT I CUE 2016-37 MONO -PALM WIFELESS FACILITY 1441 SOUTH VILLAGE WAY EXHIBIT 4 SITE PLAN 31A-1 1 0'15 Th'I'; (,'RA Vii , _4 -AC EXiS TiNG CONCRETE FIA(.) (To--' ) LA',eSDNt,, nTA,, �V�L L0AfJhVG DETAILED SITE PLAN 0 10, 20' SCALE, 1'=10'(lIX17) I (22X3A) CUP 2016-37 MONO -PALM WIRELESS FACILITY 1441 SOUTH VILLAGE WAY EXHIBIT, ENLARGED SITE PLAN 31A-12 € —.1.DWER ELEVATION c CIDP 2016-37 MONO -PALM WIFELESS FACILITY 1441 SOUTH VILLAGE WAY EXI- BIT 6 ELEVATION 31A-13 �*Y.A�jlir.711•I:.xADIVEll A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2016-37, AS CONDITIONED, TO ALLOW CONTINUED USE OF A 60 -FOOT HIGH WIRELESS FACILITY ON THE PROPERTY LOCATED AT 1441 SOUTH VILLAGE WAY BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. The Derna Group ("Applicant"), representing ATC Sequoia LLC., is requesting approval of Conditional Use Permit No. 2016-37 to renew the entitlements of an existing 60 -foot high mono -palm major wireless communications facility located at 1441 South Village Way. B. Pursuant to Santa Ana Municipal Code (SAMC) Section 41-198.10, a conditional use permit (CUP) is required for major wireless communications facilities established in the City of Santa Ana. C. SAMC Section 41-198.13 states that major wireless communications facilities shall be approved for a period not to exceed five (5) years, although subsequent legislative acts have required that such facilities be approved for a period of not less than ten (10) years. D. As the current facility is now over 10 years old, the applicant is required to apply for a new CUP in order to maintain the entitlements of the facility current. E. On January 9, 2017, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2016-37. F. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a conditional use permit upon making certain findings: 1. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or the community? The existing 60 -foot high wireless communications facility will continue to provide a service and contribute to the community. The facility will provide a service to Santa Ana residents, businesses and motorists who subscribe to Applicant's providers by providing cellular service and data coverage for its users. Resolution No. 2017-01 Page 1 of 5 31A-14 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The issuance of a conditional use permit to re -entitle this existing wireless communication facility located at 1441 South Village Way will not be detrimental to persons residing or working in the area as the facility will remain in compliance with Federal Communications Commission (FCC) and Federal Aviation Administration (FAA) safety regulations. Furthermore, Federal law exempts local jurisdictions from regulating health-related issues as these issues are covered by Federal laws. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The existing wireless facility was designed as a mono -palm to complement the existing landscape and will not adversely affect the economic viability of. the surrounding area. The location of the facility to the rear of the property will maintain the economic stability for this commercial and industrial area by continuing to provide a service for businesses, owners, workers, and residents in the area. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? The use will continue to comply with all provisions pertaining to the construction and installation of wireless facilities in Chapter 41 (Zoning Code) of the SAMC. The existing wireless communication facility was designed as a mono - palm that exhibits consistency in tree size, character and color to that of the surrounding vegetation and it is located within a gated leased area and the ancillary electrical equipment cabinets are screened by landscape. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The wireless facility will not adversely affect the intent of the General Plan as cellular facilities that are designed to be compatible with the surrounding environment are consistent with the goals and objectives of the City's Land Use Element. Goal 1 promotes a balance of land uses to address community needs, which includes means of communication that will be served by the mono -palm. In addition, Goals 3 and 5 require preservation of neighborhood character and Resolution No. 2017-01 Page 2 of 5 31A-15 integrity as well as mitigation of development impacts. The mono -palm's location minimizes visual impact on the area and assists with the screening of the equipment. Further, Policy 2.2 encourages land uses that accommodate the City's needs for services. Enhancing a cell phone provider's coverage in the area adds to the services that are readily available for business owners, workers, and residents in the immediate vicinity. G. In accordance with the California Environmental Quality Act (CEQA) the recommended action is exempt from CEQA per Section 15061(b)(3). This exemption applies to projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The project proposes to renew an existing major wireless facility through the issuance of a new CUP. No expansion of square footage or physical land disturbances are proposed as part of the project. Categorical Exemption Environmental Review No. 2016-101 will be filed for this project. H. In accordance with the California Building Code Section 3108, the subject telecommunication facility shall be designed, constructed, and/or maintained in accordance with the provisions of TIA-222, which is a set of nationally recognized standards for the constructions of telecommunication and broadcast towers. Section 2. The applicant agrees to indemnify, hold harmless, and defend the City of Santa Ana, its officials, officers, agents, and employees, from any and all liability, claims, actions or proceedings that may be brought arising out of its approval of this project, and any approvals associated with the project, including, without limitation, any environmental review or approval, except to the extent caused by the sole negligence of the City of Santa Ana. Section 3. The Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2016-37 as conditioned in Exhibit A, attached hereto and incorporated herein, for the project located at 1441 South Village Way. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated January 9, 2017, and exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. Resolution No. 2017-01 Page 3 of 5 31A-16 ADOPTED this 9th day of January, 2017. AYES: Commissioners: Alderete, Bacerra, Contreras -Leo, McLoughlin, Mendoza, Nguyen, Verino (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) Lynnette Verino Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney Bv: Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, ROSA BARELA, Acting Recording Secretary, do hereby attest to and certify the attached Resolution No. 2017-01 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on January 9, 2017. Date: Acting Recording Secretary City of Santa Ana 31A-17 Resolution No. 2017-01 Page 4 of 5 EXHIBIT A Conditions of ADDroval for Conditional Use Permit No. 2016-37 Conditional Use Permit No. 2016-37 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. Planning Division 1. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 2. The proposed facility shall be maintained as per approved plans and any existing landscaping shall be protected in place while any required improvements are installed for the 60 -foot wireless facility. 3. The permit applicant shall provide a 24-hour phone number to which interference problems may be reported. This condition will also apply to all existing facilities in the City of Santa Ana. 4. The permit applicant will provide a "single point of contact" in its Engineering and Maintenance Departments to insure continuity on all interference issues. The name, telephone number, fax number and e-mail address of that person shall be provided to the City's designated representative upon activation of the facility. 5. The permit applicant shall insure that lessee or other user(s) shall comply with the terms and conditions of this permit, and shall be responsible for the failure of any lessee or other users under the control of permit applicant to comply. 6. All deteriorating and/or faded stealth fronds shall be replaced and all antennas shall be painted a darker green to match the frond color of the surrounding palm trees. 7. Replant drought tolerant vines on wrought iron fence and groundcover along the edges of the facility. 8. Applicant acknowledges and agrees that the permit is expressly conditioned on the applicant maintaining the subject property in a well-maintained condition, including the surrounding landscape. 9. Conditional Use Permit No. 2016-37 expires 10 years from the date of City Council approval. Resolution No. 2017-01 Page 5 of 5 31A-18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: CONDITIONAL USE PERMIT NO. 2016-48 AND VARIANCE NO. 2016-08 TO ALLOW A MCDONALD'S RESTAURANT WITH DRIVE- THROUGH WINDOW SERVICE AT 1501 NORTH BRISTOL STREET - JESSICA STEINER, APPLICANT {STRATEGIC PLAN NO. 3,2) CQ _ _ CIT MANAGER 10*oli]iTi1171l4►10=1�7_[�71�[�I�I CLERK OF COUNCIL USE ONLY: El As Recommended 0 As Amended M Ordinance on 1" Reeding El Ordinance on 2"d Reading ® Implementing Resolution Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2016-48 as conditioned and Variance No. 2016-08 as conditioned. PLANNING COMMISSION ACTION At its regular meeting on January 9, 2017 by a vote of 7:0, the Planning Commission adopted a resolution approving Conditional Use Permit No. 2016-48 as conditioned to allow drive-through window service and Variance No. 2016-08 as conditioned for a reduction in the off-street parking requirement for a new McDonald's Restaurant at 1501 North Bristol Street located in the Bristol Street Corridor Specific Plan (SP -1) zoning district. The Planning Commission made no changes to the recommendation outlined in the attached staff report (Exhibit A). DISCUSSION Jessica Steiner, representing McDonald's Corporation, is requesting approval of a conditional use permit to allow the construction of a new McDonald's Restaurant with drive-through window service in conjunction with a new 4,000 -square -foot restaurant with seating to accommodate 78 patrons at 1501 North Bristol Street. A total of 40 parking spaces are required with 37 spaces to be provided for this project. In addition, a number of site improvements will be made to the site, including new drought -tolerant landscaping, signage, trash enclosure and parking lot striping. This property was identified in the Bristol Street Corridor Specific Plan as a partial -take, which impacted the site and required the demolition of the existing McDonald's restaurant. Due to the widening project, the site was reduced in size from 47,039 square feet to 35,989 square feet. Staff is recommending approval of the project and variance from strict application of the zoning ordinance due to site size and shape limitations, as well as the availability of public transportation and 31 B-1 CUP No. 2016-48 & VA No. 2016-08 — McDonald's Restaurant at 1501 North Bristol Street February 7, 2017 Page 2 walkability to the project location. Full-sized site plans are available for public viewing in the Clerk of the Council Office. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objectives #2 (create new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies). FISCAL IMPACT There is no fiscal impact associated with this action. Hassan Ha¢. ani, AICP Executive Director Planning & Building Agency AN:rb Ankwp5l\plancomm2\CUP1648.MCDonald's.cc Exhibit: A. Planning Commission Staff Report 31 B-2 Conditional Use Permit No. 2016-48 Variance No. 2016-06 January 9, 2017 Page 2. ItemInformation Use Permissions 2orfl g Code Sections Affected Saaff Report Exh366t8.` Restaurant allowed by right, with drive-through service allowed with a GU�_--- conditional use Orrnr41-'4'9.4.6(e) Use Eating establishment with drive hrou h windpw service with a CUP Development 41-1341 (parking requirement for restauraril Standards 1411305 (dual use of loading zone) 1 {sectional District %lap), 2 (Aerial Irrrage) 3 (Site Photo) 4 (Site Plan), 5 (Floor Plan), 6 (Elevations and Colored Rendering), and 7 t 'iandsca e Pian ,_ Froiect peserigton McDonald's Is requesting approval of a conditional use permit to allow drive-through window service in conjunction with a new 4,000 -square -font restaurant with seating to accommodate 78 patrons. A total of 40 parking spaces are required with 37 spaces to be provided for this project. In addition, a number of site improvements will be made to the site, Including new drought -tolerant landscaping, signage, trash enclosure and parking lot striping, The proposed architectural style Is California Contemporary. A variety of quality building materials, Including a pre -finished hanger rod metal canopy, aluminum trellis and metal coping will be used. Clear glass storefronts and anodized aluminum frames will be installed on all windows and doors. Additionally, a new 200 -square -foot outdoor dining area will be provided as an added amenity, The proposed hours of operation will be from 6.00 a.m. to 12:047 a.m. seven days a week. A 15 -foot landscaped setback will be provided along the Bristol Street frontage and a 5-10 foot wide landscape buffer to be provided along the east property line adjacent to the residences. An eight -foot high solid block wall that matches the existing sound wall along Bristol Street will be constructed along the east property line to provide a buffer between the drive-through lane and residences, and minimize any noise impacting the adjacent residences. Vine pockets will be incorporated into the block wall to prevent graffiti as required by the City's graffiti mitigation design guidelines. Table 2 provides a detailed comparison of the project's compliance with the applicable development standards. New landscaping is proposed throughout the site with drought -tolerant landscaping materials (Exhibits 4, 5 and 6). Side setback 0 feet _ 5 to 10 feet Rear setback None, but 20 feet for any portion of Parking adjacent to r the building above 15 feet in feet 6 inches _�J height Bu11 inn 39 feet 31 B-4 Conditional Use Permit No. 2016-48 Variance No. 2016-08 ,January 9, 2017 Page 3 Standard _._ Building bei he c� t Parking Required by �Atvl _ 40 spaces Provided 23 feet 4 inches 37 specs` Provided within front, side setback Landscaping Within front, side setback and parking areas...and' arking areas signage None required Signage shall conform to the sign standards in SAMG Sec. 41-800 wrldnC4 requested . ■=• ■' ■ Frarg 1M OMM..■.. A 2,680 -square -foot McDonald's restaurant with drive-through window service was constructed in 1968 at this location and has been in operation since that time. This project site was identified in the Bristol Street Corridor Specific Plan as a partial -take for the Bristol Street Widening project in 2013. As part of the widening project, the existing McDonald's restaurant will need to be demolished. The project site will be reduced from 47,039 square feet to 36;989 square feet in size after dedication. Project Analysis Conditional Use Permit Staff has reviewed the applicant's request to construct a new McDonald's Restaurant with drive- through window service at this location. In analyzing the conditional use permit request, staff believes that the following analysis warrants staff's recommendation of approval for the conditional use permit. The proposed McDonald's Restaurant with drive-through window service meets all of the requirements specified In the SP1 zoning district relating to the proposed use. The proposed project will be in compliance with the following applicable development standards, Including landscaping, setbacks and signage. Appropriate conditions of approval have been included for this project that will ensure it remains in compliance with the provisions of the zoning district. A condition requiring the applicant to provide the required four bicycle spaces on site was added, A variance for the number of parking spaces and provision of a dedicated loading space has been filed concurrent with this conditional use permit. The proposed McDonald's Restaurant with drive-through window service will support several goals and policies of the General Plan, including Land Use Element Goal 1, which promotes the balance of land uses to address basic community needs; Goal 2, which promotes land uses that enhance the economic viability of the City, and, Goal 3, which aims to allow uses that preserve and improve the character and integrity of neighborhoods, including bath the adjacent cornrnerdal and residential neighborhoods. The project will promote a balance of land uses to address basic community needs and that enhance the economic viability of the City and will provide a use that will assist in diversifying 31 B-5 Conditional Use Permit No. 2016-48 Variance No. 2016-08 January 9, 2017 Parte 4 the range of services available to adjacent communities. Land Use Element Policy 2.8 promotes the rehabilitation of commercial properties and encourages increased levels of capital Investment. This project will promote 'the re -Investment of a commercial property and encourage increased levels of capital Investment through the construction of a new restaurant on this site. Further, Land Use Element Policy 6,5 encourages development which is compatible with and supportive of surrounding land uses, The proposed project will assist in providing a variety of dining services to those working and going to school in the Immediate area and will provide employment opportunities to residents that live in the surrounding community. EALkLnq Variance The applicant is requesting approval of a variance from Sections 41-1306 and 41-1341 of the Santa Ana Municipal Code (SAMC) to allow a reduction in parking and modification to loading for the proposed McDonald's. Per Section 41-1306, one dedicated loading space is required per 10,000 square feet of gross floor area. Per Section 41-1341, one parking space Is required for each 100 square feet of gross floor area. As proposed, a total of 40 parking spaces are required, while 37 spaces are provided (Table 3). "Table 3 Parking requirement Off-street parking � 37 provided" 40 spaces required rich aui4Clpp�u 2 provided 2 required Loading *Loading limited to 1 dedicated space required hours in dealpnate Bicycle parking Project conditioner The proposed restaurant does not comply with the City's off-street parking requirements. A total of 37 parking spaces are proposed on-site representing a three parking space (7.6 percent) deficiency. In addition, the applicant is requesting modification to the loading '.requirement. instead of providing a dedicated' loading space, loading will be provided during non -peak hours from the vehicle parking area. Section 41-632(2) of the SAMC gives the City the ability to allow a parking reduction and loading space requirement through the variance process, Variance may be granted when it can be shown that a special circumstance exists as it relates to the property, such as size, shape, topography, location or surroundings; that the variance will not be detrimental to the public or surrounding property, and that the variance will not adversely affect the General Plan. if these findings can be Made, then it is appropriate to grant the variance, Conversely, the inability to make these findings would result in a denial, MEW Conditional Use Permit No, 2016-48 Variance foto. 2616-68 January 9, 2017 Page 5 Using this information staff has prepared the following analysis, which forms the basis for the recommendation contained in this report. In analyzing the parking variance request, staff believes that the following findings of fact warrant approval of the parking variance. There are special circumstances applicable to the subject property. The subject site is located on the east side of Bristol Street between Seventeenth Street and Washington Avenue. The project site was identified as part of Bristol Widening project. As a result, the project site will be reduced from 47,039 square feat to 35,989 square feet in size after dedication. There is no feasible option for providing additional parking and loading spaces required due to the reduced lot size and width. The variance will allow the applicant the ability to use the property in a manner that is consistent with similar surrounding commercial uses. The Bristol Street Corridor Specific plan was envisioned to create a strong and viable commercial district with systematic development and landscaping standards. The granting of the variance for parking and loading will preserve the property owner's ability to re -build a new McDonald's restaurant that meets the current industry and development standards as well as the City's and State's Building and Fire codes. The existing McDonald's restaurant has been an established business in the City since 1968. The granting of the variance will contribute the overall success of the Bristol Street Corridor as a major commercial corridor in the City as a whole. The granting of the variance will not be materially detrimental to the public welfare or injurious to the surrounding property. The site will have sufficient parking to accommodate their patrons, and loading can be accommodated in vehicle parking areas during non -peak hours. The proposed McDonald's restaurant is located within close proximity to public transportation and Santa Ana Community College. It is anticipated a number of their patrons will utilize public transportation and the pedestrian path along Bristol Street, Therefore, the reduction in parking and loading will not be detrimental to the surrounding community as it will not result in parking impact to the adjacent commercial or residential neighborhoods. Conditions have been placed to ensure that the site be in compliance with all other development standards applicable to the property, Additionally, the granting of the variance will not adversely affect the General Pian of the City as the proposed restaurant use is consistent with Goals 1 and 2 of the Land Use Element of the General Plan. These goals encourage uses such as restaurants that promote a balance of land uses to address basic community needs and which enhance the City's fiscal viability. In addition, the project is consistent with Policy 22 of the Land Use Element, which supports commercial uses that accommodate the City's needs for goods and services. f=urthermore, Policy 2.8 of the Land Use Element promotes the reinvestment of commercial properties, and encourages increased levels of capital Investment. Significant site improvements and the construction of a brand new 4,000 -square - foot restaurant will occur an the site that wall enhance the overall appearance of the Bristol Street Corridor, thereby resulting in an increase in investment on the site and surrounding properties. Finally, Policy 5.5 of the Land Use Element encourages development that is compatible with and supporting of surrounding land uses. The proposed restaurant use will be located fn a commercial area and their operations will be compatible with the surrounding commercial busincosses. 31 B-7 Conditional Use Permit No. 2016-48 Variance No. 2016-08 January 9, 2017 Page 6 Table 4 CEQA Strategic Pian Alignment, Public NotificationlCommunity Outreach CEQA, Strategic Plan Alignment, Public NotificationlCommunity Outreacll CEQA C€QA T e Class 3 (Section 153{13) Document Type Categorical Exemption (Ei� No. 2015-691 Reascin(s) Exempt or Analysis Class 3 exemptions apply to small construction projects or buildings in urban areas up to 10,0100 feet in size not involving the use of significant amount of hazardous substance where all necessary public services and facilities are available. The subject project contains a 4,000 -square foot building in an urbanized area. The site is not Sensitive habitat and is not wetlands. _project StrateclicPlanAlignment Goal(s), Policy or Policies 5, 3 (Support reinvestment in distressed areas) Public Notification & Community Outreach Required Measures Sito kesting on 1212.912016 Notificaiionby maid on 12f2912016 Newspaper postng oto 1�134i(2Q'E6-__ Addtional Measures Staff contact with Washingion §quare Neighborhood Association Nei � Assoclataon Meetln on 1115/2015 and 11 /W2016 Based on the analysis provided within this report, staff recommends that the Planning Cornmisslon approve Conditional Use Pemilt No, 2016-48 as conditioned and Variance No. 2016-08 as conditioned. Ann Hsi -An Ni Associate Planner AN:jm AnP�wp5'RpldtrvxiiiiiZCUPI&-46.McDonald's.pc Attachments: Exhibit 1 — Vicinity Map Exhibit 2 — Land Use Map Exhibit 3— Sita Photo Exhibit 4 —8 ite Plan Exhibit a -- Floor Plan Exhibit 6 -- Building Elevations and Colored renderings Exhibit 7—Landscape Plan H/ % JtcAr R„ t¢r rsl �N Nl H fit NI litNI Ni � RI R, 4Y�A% �.._ . Fl�.• Rf fl.i,. Ri n�. =-E f/! 0 lit lit HI HI Rl lit A, Li Li Li lit 1 xt_ r. ' .. i.° lil Hl fit f: N1 piP R7 _ p n1 F '' Hl 1..1 HT Hi Fit L x Cl .... Im, sr rl n 7 N° I P-1 n xz Hi P1 '. " RI '' R1 RI— ... Ri- _ II N F 111 Ilt III t PROAd n1l'i n Rt PI KI ftl lil 11 ttx IS3{3 - p Ri 92 :nI i L. ..r.<,,...__....,....� 4Y li, �— 42 II} at RI AI Y At AI gl Ii .,..- Hl ��, n ��fll RI iF I _ C-�_' fFI I[I RI n4 �� AI pHHrfNM1 ,k'iNt[Jl Nptif .... LOIANE'iCIA. $CSSIF.NTiA� RI 311cCrl'-60.fAILY fh91Y,'Pk'F. B Pt9tJeA. A101APCArdlNi.r vi" +NIAF15WWI A9 -1W TAMMY II151UEfu_E C-SfA CCd,Ea1CI1CiAL5fiU'IU WdR, I'll %:N(INPus RILVI A3 MUMPLUANIRY IIIiSIDUG Cl C71FAUNITY COM11"ilril, ¢A2 Hn YdbUHCU.NfiV.o.N1Yf`c5i� CI-Mp ffhMLGtSAitdEAfUI+.4J5111Y.1 UAW i "c' YFlLI'lNW10PEM0115 IIP 8r51'IFRTIAI FW7 .. oIN 'pa 1.0mml r L9 W 51'1,.IFR I]W'd CrY.l4M1 c;Y.YkgIDl PHUr;Nu4Al 59 91� TIF6: PL0.N C? -A UNFli4A. B',l*YA:'ifrh(H Si"fl;y-Ac.1 fill PIANHHII I)61rk.1.Y11Y Ill' -Ad tMIINl R 'tANKID SJOPPINGMITCH PIN PL ANIkUREIRIU ALIM1111W-nl 6 41"171 Rio— cl-Mic H[b>.t CUP 2016-48/VA 016 -CD8 � �. McDONALUS _ 1501 NORTH BRISTOL STREET VICINITY MAP 3tB'-11%07' CUP ►2016-08 I ! a 1501 NORTH BRISTOL STREET —.a L A h; LI—N G ,A h n H U I I. U I R G A G I N C 7 LAND USE MAP EXHIBIT 31 B-10 17th STREET LGPAAl RGIA L V A ` A N � w y iu rgccw w � v W e � r Lu ILI n J D v tJ u `cam .i CUP ►2016-08 I ! a 1501 NORTH BRISTOL STREET —.a L A h; LI—N G ,A h n H U I I. U I R G A G I N C 7 LAND USE MAP EXHIBIT 31 B-10 Exhibit 3 CLIP No, 2016-48 & VAR No. 2016-08 Site Photo 31 B-11 aPt I a z $ LLI " EXHIBIT 4 31 B-12 " ; x t�?ek• uU-tea. �tlS'y8. QI?d4a+e 31B.13 Cr) 00 0 C\l 0 , � \ LL �(\ r) }\ z/` 0 Li Q l EXHIBIT 6 Pagel aft 31B-14 f 11 00 0 I 0 0�d 0ic� C: H zb 0 ,yGy�pea W?en •.y U, Y'T'n�ea° V. �jR 3'.♦ @H zzl a i4 I F �} T] E E E s m U EXHIBIT 6 Pagel aft 31B-14 f 11 00 0 I 0 0�d 0ic� C: H zb 0 ,yGy�pea W?en •.y U, Y'T'n�ea° V. �jR 3'.♦ @H zzl Ric .jel 2 x! 31B.15 00 0 0 1 It 0 \]:»z!«! El 1:1,E] Ric .jel 2 x! 31B.15 00 0 0 1 It 0 LU m 31 B-16 I EC 0- < w z UJ cc 00 0 C\j 0 0 w �- CD � JLL n - 1-0 r r) ca F<z kr < o < z u?I-N 'AMIN ee C4 I t ff, m 31 B-16 I EC 0- < w z UJ cc 00 0 C\j 0 0 w �- CD � JLL n - 1-0 r r) ca F<z kr < o < z u?I-N 'AMIN ee Pw40ffic Box 44.15 Santa Ana CA 927021 December 29, 2016 TO: Mayor, City Council and Santa Ana Planning Commission, RE: McDonaids on Bristol across from Santa Ana College. Dear Mayor, Council Members, and Commissioners. The Washington Square Neighborhood Association would like to extend our support for the rebuilding of the McDonalds Restaurant located !it the 1400 block of North Bristol due to the Bristol Street widening, We formed an ad hoc committee of residents within the neighborhood, as well as a couple who reside directly behind the restaurant on North Louise St. We were in attendance at three meetings held with the restaurant owner, architect, and Santa Ana Building officials, There were several Issues the neighborhood wanted to address and we're happy to say our concerns were met and we are confident the issues have been mitigated to the best of all the parties involved. Therefore, we want to extend our thanks to the owner and support for the relocation and construction of McDonalds on N. Bristol St. Sincerely, Torn Lutz, January Smith, Ray Poppa and Susan Van der Roast. Washington Square Neighborhood Association 31 B-17 LS 1.9.17 RESOLUTION NO. 2017-02 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2016-48 AS CONDITIONED TO ALLOW A DRIVE-THROUGH, AND VARIANCE NO. 2016-08 AS CONDITIONED TO ALLOW REDUCTIONS IN THE OFF-STREET PARKING AND LOADING REQUIREMENTS FOR THE PROPERTY LOCATED 1501 NORTH BRISTOL STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. Conditional Use Permit - The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Conditional Use Permit No. 2016-48 to allow a drive-through window service in conjunction with a new McDonald's Restaurant in the Bristol Street Corridor Specific Plan (SP1) zoning district at the property located at 1501 North Bristol Street. B. Santa Ana Municipal Code Section 41-472.5(g) requires approval of a conditional use permit to allow eating establishments with drive-through window service in the Bristol Street Corridor Specific Plan (SP1) zoning district. C. On January 9, 2017, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2016-48. D. The Planning Commission of the City of Santa Ana determines that the following findings, which must be established in order to grant this conditional use permit pursuant to Santa Ana Municipal Code (SAMC) Section 41-424.5(e), have been established for Conditional Use Permit No. 2016-48 to warrant approval of the conditional use permit to allow a drive-through: 1. That the proposed use will provide a service or facility which will contribute to the general well-being of the neighborhood or community. The proposed eating establishment with drive-through window service will provide a service to the community. The proposed eating establishment with drive-through window service is a use that is supportive to the primary commercial and residential uses in the area. The use will provide dining opportunities to those working in the immediate area and will provide employment opportunities to residents that live in the City. The drive-through window service will provide a convenient option for patrons purchasing meals at the restaurant. Resolution No. 2017-02 Page 1 of 9 31 B-18 2. That the proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. The proposed eating establishment with drive-through window service will not be detrimental to persons residing or working in the vicinity because the eating establishment with drive-through window service has been designed to minimize potential impacts to vehicles travelling along Bristol Street as the internal stacking area has been designed to exceed the minimum standards required by code. Further, conditions of approval have been incorporated to minimize potential adverse impacts from occurring on the premises. 3. That the proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. The proposed eating establishment with drive-through window service will not adversely affect the economic stability of the area but will make a positive contribution to the surrounding area. The project will provide a well maintained and operated service to the community and will complement and improve the economic viability of the area as the proposed eating establishment with drive-through window service would include improvements to the property and streetscape including new landscaping and architectural enhancements. The use of the site as an eating establishment with drive-through window service in conjunction with the improvements that will be made to the site will improve the economic viability of the area. 4. That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. The proposed eating establishment with drive-through window service will be in compliance with all applicable regulations and provisions of Chapter 41 of the Santa Ana Municipal Code and all other provisions that are applicable to an eating establishment with drive-through window service. Site improvements are proposed to the drive-through lane, with the exception of parking, which is subject to a separate application, landscaping and signage, that will ensure the site is in compliance with the zoning code. 5. That the proposed use will not adversely affect the General Plan or any specific plan of the City. The proposed McDonald's Restaurant with drive-through window service will not adversely affect the General Plan. The proposed McDonald's Restaurant with drive-through window service will support several goals and policies of the General Plan, including Land Use Element Goal 1, which promotes the balance of land uses to address basic community needs; Goal 2, which promotes land uses that enhance the economic viability of the City; Resolution No. 2017-02 Page 2 of 9 31 B-19 and, Goal 3, which aims to allow uses that preserve and improve the character and integrity of neighborhoods, including both the adjacent commercial and residential neighborhoods. The project will promote a balance of land uses to address basic community needs and that enhance the economic viability of the City, will provide a use that will assist in diversifying the range of services available to adjacent communities. Land Use Element Policy 2.8 promotes the rehabilitation of commercial properties and encourages increase levels of capital investment. This will promote the re -investment of a commercial property and encourage increased levels of capital investment through the construction of a new restaurant for this site. Further, Land Use Element Policy 5.5 encourages development which is compatible with and supportive of surrounding land uses. The proposed project will assist in addressing the needs of dining services to those working in the immediate area and will provide employment opportunities to residents that live in the surrounding community. Section 2. Variance - The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Variance No. 2016-08 to allow a reduction in the off-street parking requirements in order to construct a 4,000 square foot restaurant with drive-through window service at the property located at 1501 North Bristol Street. B. Santa Ana Municipal Code Section 41-632.2 requires approval of a variance to allow a reduction in the off-street parking requirements in order to construct a 4,000 square foot restaurant with drive-through window service in the Bristol Street Corridor Specific Plan (SP1) zoning district. C. The applicant is requesting approval of a variance from Section 41-1305 and 41-1341 of the Santa Ana Municipal Code to allow a reduction in parking and modification in loading for the proposed restaurant with drive-through window service. Pursuant to Section 41-1341, ten (10) parking spaces are required for each 1,000 square feet of gross floor area. As proposed, a total of 40 parking spaces are required, while 37 spaces are provided. In addition, the applicant is requesting modification to the loading requirement. Instead of providing a dedicated loading space, loading will be permitted during non -peak hours from the vehicle parking area. D. On January 9, 2017, the Planning Commission held a duly noticed public hearing on Variance No. 2016-08. E. The Planning Commission determines that the following findings, which must be established in order to grant this variance to Santa Ana Municipal Code Section 41- 632.2, have been established for Variance No. 2016-08 to allow the reduction in off- street parking and loading requirement: Resolution No. 2017-02 Page 3 of 9 31 B-20 1. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, that the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provisions of this Chapter. There are special circumstances applicable to the subject property. The subject site is located on the east side of Bristol Street between Seventeenth Street and Washington Avenue. The project site was identified as part of Bristol Widening project. As a result, the project site will be reduced from 47,039 square feet to 35,989 square feet in size after dedication. There is no feasible option for providing additional parking and loading spaces required by the Section 41-1305 and 41-1341 of the Santa Ana Municipal Code due to the reduced lot size and width. The variance will allow the applicant the ability to use the property in a manner that is consistent with similar surrounding commercial uses. The Bristol Street Corridor Specific Plan was envisioned to create a strong and viable commercial district with systematic development and landscaping standards. 2. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The granting of the variance is necessary for the preservation and enjoyment of property rights. The granting of the parking variance will preserve the property owner's ability to re -build a new McDonald's restaurant that meets the current industry and development standards as well as the City and State Building and Fire codes at this location. The existing McDonald's restaurant has been an established business in the City since 1968. The granting of the variance will contribute to the overall success of the Bristol Street Corridor as a major commercial corridor in the City as a whole. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The granting of the variance will not be materially detrimental to the public welfare or injurious to surrounding property. The site will have sufficient parking and loading to accommodate their patrons and their loading and unloading needs. Further, the proposed McDonald's restaurant is located within close proximity to public transportation and Santa Ana Community College. It is anticipated that a number of its patrons will utilize public transportation and the pedestrian path along Bristol Street. Therefore, the reduction in parking will not be detrimental to the surrounding community as it will not result in parking impacts to the adjacent commercial or residential neighborhoods. Conditions have been placed to ensure that the site be in compliance with all other development standards applicable to the property. Resolution No. 2017-02 Page 4 of 9 31 B-21 4. That the granting of a variance will not adversely affect the General Plan of the City. The granting of the variance will not adversely affect the General Plan of the City as the proposed restaurant use is consistent with Goals 1 and 2 of the Land Use Element of the General Plan. These goals encourage uses such as restaurants that promotes a balance of land uses to address basic community needs and which enhance the City's fiscal viability. In addition, the project is consistent with Policy 2.2 of the Land Use Element, which supports commercial uses that accommodate the City's needs for goods and services. Furthermore, Policy 2.8 of the Land Use Element promotes the rehabilitation of commercial properties, and encourages increased levels of capital investment. Significant site improvements and the construction of a brand- new 4,000 square foot restaurant will occur on the site that will enhance the overall appearance of the Bristol Street Corridor, thereby resulting in an increase in investment on the site. Finally, Policy 5.5 of the Land Use Element encourages development that is compatible with and supporting of surrounding land uses. The proposed restaurant will be located in a commercial area and its operations will be compatible with the surrounding commercial businesses. F. The proposed project meets provisions of the zoning code (SAMC Chapter 41) including lot size, lot frontage, landscaping, setbacks and lot coverage with the exception of parking. In addition, the proposed restaurant with drive-through will allow an existing business to stay and grow at the current location as well as provide additional dining opportunities for residents of Santa Ana. Further, the project is consistent with the goals and objectives of the General Plan, including Goal 1, which encourages a balance of land uses that address basic community needs, and Goal 2, which encourages land uses that enhance the City's economic and fiscal viability. Section 3. In accordance with the California Environmental Quality Act the recommended action is exempt from further review per Section 15303. This Class 3 exemption allows small construction projects or buildings in urban areas up to 10,000 square feet in size, not involving the use of significant amount of hazardous substance where all necessary public services and facilities are available. Categorical Exemption Environmental Review No. 2015-69 will be filed for this project. 1. There will not be a significant cumulative effect by this project and successive projects of the same type in the same place, over time. 2. There is not a reasonable possibility that the project will have a significant effect on the environment due to unusual circumstances. 3. This project does not damage a scenic resource within an officially designated state scenic highway. Resolution No. 2017-02 Page 5 of 9 31 B-22 4. This project is not located on a site included on any list compiled pursuant to Government Code Section 65962.5. 5. This project does not cause a substantial adverse change in the significance of a historical resource. Section 4. The applicant agrees to indemnify, hold harmless, and defend the City of Santa Ana, its officials, officers, agents, and employees, from any and all liability, claims, actions or proceedings that may be brought arising out of its approval of this project, and any approvals associated with the project, including, without limitation, any environmental review or approval, except to the extent caused by the sole negligence of the City of Santa Ana. Section 5. The Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2016-48 as conditioned in Exhibit A, attached hereto and incorporated herein, and Variance No. 2016-08 as conditioned in Exhibit B, attached hereto and incorporated herein, for the project located at 1501 North Bristol Street. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Planning Commission Action dated January 9th, 2017 and exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. ADOPTED this 91h day of January, 2017 AYES: Commissioners: Alderete, Bacerra, Nguyen, Verino (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) Contreras -Leo, McLoughlin, Mendoza, Lynnette Verino Chairperson Resolution No. 2017-02 Page 6 of 9 31 B-23 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, ROSA BARELA, Acting Recording Secretary, do hereby attest to and certify the attached Resolution No. 2017-02 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on January 9, 2017. Date: Acting Recording Secretary City of Santa Ana 31 B-24 Resolution No. 2017-02 Page 7 of 9 EXHIBIT A Conditions of Approval for Conditional Use Permit No. 2016-48 Conditional Use Permit No. 2016-48 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this approval. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the Conditional Use Permit. A. Planning Division 1. All proposed site improvements must conform to the Site Plan Review approval of DP No. 2015-29 and the staff report exhibits. 2. Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. Prior to approval of Certificate of Occupancy, all on-site improvements shall be made in accordance with the submitted plans. 4. Landscaping shall be maintained in compliance with the submitted plan. Any modifications to this plan shall be submitted to the Planning Division for review and are subject to the approval of the Planning Manager. 5. The applicant or responsible party shall submit the plan(s) listed below to the Orange County Fire Authority for review. Approval shall be obtained on each plan prior to issuance of a building permit: a. Fire master plan (service code PR145) b. Architectural (service code PR248) 6. The applicant or responsible party shall submit the plan(s) listed below to the Orange County Fire Authority for review. Approval shall be obtained on each plan prior to concealing interior construction: Hood and duct extinguishing system (service code PR335). 7. Prior to approval of Certificate of Occupancy, four short term bicycle parking spaces required by SAMC Section 41-1307.1 shall be installed. Resolution No. 2017-02 Page 8 of 9 31 B-25 EXHIBIT B Conditions of Approval for Variance No. 2016-08 Variance No. 2016-08 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed belowrip or to exercising the rights conferred by this approval. The applicant must remain in compliance with all conditions listed below throughout the life of the variance. Failure to comply with each and every condition may result in the revocation of the variance. B. Planning Division 1. All proposed site improvements must conform to the Site Plan Review approval of DP No. 2015-29 and the staff report exhibits. 2. Any amendment to this variance must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. Prior to approval of Certificate of Occupancy, all on-site improvements shall be made in accordance with the submitted plans. 4. Landscaping shall be maintained in compliance with the submitted plan. Any modifications to this plan shall be submitted to the Planning Division for review and subject to the approval of the Planning Manager. 5. A total of at least thirty-seven (37) parking spaces and four (4) bicycle parking spaces shall be maintained on the premises at all times. 6. Loading shall be completed during non -peak hours or in a manner that does not further reduce required parking. Resolution No. 2017-02 Page 9 of 9 31 B-26 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: VARIANCE NO. 2016-09 TO ALLOW AN EXISTING FREESTANDING SIGN TO REMAIN AT A MOBIL SERVICE STATION AT 1351 EAST DYER ROAD - ULISES ARAUJO, APPLICANT (STRATEGIC PLAN NO. 3,2) CITY MIKAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 1;s _s ❑ As Recommended ❑ As Amended ❑ Ordinance on 18 1 Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolutlon ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Variance No. 2016-09 as conditioned. PLANNING COMMISSION ACTION At its regular meeting on January 9, 2017, by a vote of 7:0, the Planning Commission adopted a resolution approving Variance No. 2016-09 as conditioned to allow an existing 37 -foot freestanding sign to remain at a Mobil service station and exceed the allowed maximum height at 1351 East Dyer Road located in the Specific Development No. 12 (SD -12) zoning district. The Planning Commission made no changes to the recommendation outlined in the attached staff report (Exhibit A). DISCUSSION Ulises Araujo, representing Dyer Grand Development LLC, is requesting approval of a variance to allow an existing 37 -foot freestanding sign to remain at 1351 East Dyer Road. Specifically the applicant is requesting a variance from Section 41-862(b) through Section 41-862(d) of the Santa Ana Municipal Code (SAMC). Staff is recommending approval of the variance to legalize the existing sign due to site proximity to the freeway exit and existing visibility of the freestanding sign from the freeway elevated grade. The subject site is approximately 31,461 square feet (0.72 acres) in size and was developed as a service station in 1968. The service station includes two canopy covers that provide shade to 12 pumps stations; an air/water machine is located to the north of the property. In November 2016, the applicant submitted plans to renovate the site and construct a small addition to the convenience store. The fagade and site improvements triggered the requirement of the SAMC Section 41-681.2(1) that requires all on-site signage to meet current standards. The applicant requested that the existing freestanding sign remain, providing visibility to the site from the freeway. Full-sized plans are available for public viewing in the Clerk of the Council Office. 31 C-1 VA No. 2016-09 — Mobil Sign at 1351 East Dyer Road February 7, 2017 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objective #2 (create new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies). FISCAL IMPACT There is no fiscal impact associated with this action. assan Haghqi, AICFv Executive Director Planning & Building Agency IO:rb to\Planning Commission\1351 E Dyer\1351 E Dyer Mobil Sign Variance. cc Exhibit: A. Planning Commission Staff Report 31 C-2 PLANNING COMMISSION MEETING DATE: JANUARY 9, 21717 TITLE: 3J Wall • t M Prspare.t by Executive Director °- �!`1R�61'Titf�CT��I�T,jtTili"iTIFNT��„7`tii':���+��i� APPROVED U7 As Recommended Cl As Arwz.nded 0 Set Public Heannrg Far DENIED * Applicait s RedueM Swfr Recownimilda(k)" CONTINUED TO RECOMMENDED ACTION Adopt a resolution approving Variance No. 2.4716-179 as conditioned. Executive SLImmar Plannn�T lois lager Ulises Araujo, representing Oyer Grand Development LLC, is requesting approval of a variance to allow an existing 37 -foot freestanding sign to remain at 1351 East Dyer Road. 'Specifically the applicant is requesting a variance from Section 41-862(b) through Section 41-862(d) of the Santa Ana Municipal Code (SANK). Staff Is recommending approval of the variance to legalize the existing sign due to site proximity to the freeway exit and existing visibility of the freestanding sign from the freeway elevated grade. Removing the sign and replacing with a new freestanding sign, constructed to meet current requirements of the SAMC will only allow visibility from the street and not from the freeway or off ramp. Table 1: Project and Location Information Project Address and Nearest Cross Streets General Plan and Zoning Designations Surrounding Land Lues Existing Site Development Use Permissions 1351 East Dyer Road (Dyer Road and Grand Avenue) General Plan Zoning .._. North East South West Service Station Permitted by right EXHIBIT A 31 C-3 General Commercial (GC) Specific Development No. 12 (SD -12) Commercial Costa Mesa Freeway (SR -55) Caltrans vacant p Commercial Variance No. 2016-09 January 9, 2017 Page 2 Item information _.�=.,,.e. ..�....,.�m.._..-..,-r Zoning triode Sections Affected X58 41^1 2(m) developinent 41-862 (Sign Code) Steri Report Exhibits 1 (Vicinity Map), 2 (Land Use Map), 3 (Site Photo), 4 (Site Plana Prolect pescriotion Dyer Grand Development. LLC is requesting approval of a variance to allow an existing 37 -foot freestanding sign to remain at a project site concurrently undergoing site improvements. The action of removing the pylon sign was triggered per Section 41-681.2(l) of the SAMC. This section, the non- conforming buildings and uses section, requires that when rehabilitation occurs to a non-residential site of 15,000 square feet or more, all signage must be brought into compliance with the SANK sign requirements. The applicant has requested a variance from several sections of the sign to allow the freestanding sign to remain at Its current location, to allow its height to remain, and to not provide the site address on the base of the sign. The applicant has submitted plans to expand the existing convenience store and construct facade and tenant improvements. The tenant improvements will be reviewed by staff at a ministerial' level and will most all City design requirements, The existing hours of operation are to remain; the convenience store is open to the public from 6:00 a.m. to 11:00 p.m. dally and from 11:00 p.m. to 6:00 a.m. to sell fuel only, The convenience store offers the sale of alcoholic beverages for off -premise consumption but is limited to the hours of 6:00 a.m. to 11:00 prn, A total of nine parking spaces will be provided in addition to the six additional parking spaces that are counted from the pumps stations. Tables 2A and 2B below provides a detail comparison of the project's compliance with the applicable development standards. Table 2: Development Standards Freestanding Signs (Sec. 41-662 of the sAMC) Standard Requited by SAMC Provided Signage Mone required I Freestanding and wall signs Must provide street frontage ; Complies; Project has frontage on mer Rd. and Grand Ave.___ Four (4) feet in any direction Complies; Min 12 feet Street Frontage Landscape Planter Distance from side property lineA.- Twenty-five (25) feet does not -Comply; 22 feet ------ 31 C-4 Variance No. 2016-09 January 9, 2017 Page 3 F W I 117VA. 9 Freestanding Signs (Sec. 41-862 of the SAMC) Standard j Required by $AMC Provided Distance to additional freestanding sign One hundred (100) feet Complies; 145 feet Sign location in visibility Located out of a fifteen (15) Complies; 15 feet in both directions triangle at drive way by fifteen (15) triangular area Address Identification Located at base Does not comply Distance to residential Fifty (50) feet Complies; 1,600 feet I _J x. .. E M J 6 1 F T JTq F M mmmM� I Height I Maximum 35 feet I Does not comply; 37 feet I centerline intersection with a Not to exceed 300 feet Sign Orientation Oriented towards Freeway Limited — e� to business -n—a—mo Warne Sign content service station Project Background and Chronolog Does not comply; 385 feet Complies Complies The subject site is approximately 31,461 square feet (072 acres) In size and was developed as a service station in 1968. The service station includes two canopy covers that provide shade to 12 pumps stations; an airMater machine is located to the north of the property. In November 2016, the applicant submitted plans to renovate the site and construct a small addition to the convenience store. The fagade and site Improvements triggered the requirement of the SAMC Section 41-681.2(1) that requires all on-site signage to meet current standards. The applicant requested that the existing freestanding sign remain, providing visibility to the site from the freeway. 31 C-5 Variance No. 2018-09 January 9, 2017 Page 4 F"rcafect Analvsls (Signage Variances) The applicant's request for a variance from the development standards of the SAi4t1C requires staff to create certain findings or facts for granting the variance. Of those findings, the site has special circumstances that would otherwise be limiting the full use of the property if the requirements sof the code are applied. The request to allow the existing sign to remain is warranted by the fact that the grade of the service station is substantially lower than that of the freeway which provides most of the service station's clientele. Removing the sign and replacing it with a new smaller sign that meets current code requirements would limit the site's visibility from an elevated grade. Granting the variance also allows the property and business owner the ability to preserve substantial property rights since the development of the site has always been a service station, in compliance with all requirements of the aAMC. The variance to allow the existing sign to rernaln will not be detrimental to the public welfare or injurious to the surrounding properties since the service station is complimentary to the surrounding commercial uses in the area. Additionally, the granting of the variance Is consistent with the General Plan vision of the City by promoting continued economic investment to private development. The applicant has requested a variance from several code requirements, • The first request refers to the distance of the sign to the side property line. Although the sign Is. 22 feet from the side property line, this property line abuts Grand Avenue and is directly adjacent to the 54reeway. Thesecond request is a variance from the sign code requirement that all freestanding signs.. provide the address at the mase. Since the sign is constructed as a pylon, any content at the base will wrap around and will not be visible from the right-of-way. In addition, an address will be provided on the separate monument sigri located along the Dyer Road frontage. • Relief from the maximum 35 -foot height requirement for service station pole signs is the third variance. The site is slightly lower than the adjacent freeway. At 37 feet tall, the sign is easily visible from the adjacent freeway. • The final request is, an Increase in the distance from a freeway exits. Although the freeway exit is 385 feet from the site. The sign's location, less than 200 feet east of the freeway and over 250 feet north of the southbound exit, allows drivers to see the sign and safely exit canto Dyer Road. Although the existing sign does not meet several code requirements, the sign will meet the majority of the requirements and the applicant has guaranteed that all additional signage on site will be compliant. The overall project provides an opportunity to update all on-site landscaping and parking, bring the site to closer compliance of the SAMC. These improvements will help to enhance the quality of life to the surrounding community„ setting precedent to other commercial properties in the area that are in need of repair. 31 C-6 Variance No, 2016-09 January 9, 2017 Page 5 CEqA, Strategic Plan Alignment, and Public Notification & Communq Outreach CERA CEQA Type Class 1 (Section 15301) . . . .. ..... . ........... ...... ....... . .... Document Type Categorical Exemption (ER No. 2016-164) Reason(s) Exempt or Class 1 exemptions apply to existing facilities. The subject project is an existing Analysis service station undergoing tenant improvements. Strategic Plan Alignment Goal(s), Policy or 3, 2 {create now opportunities for business/job growth and encourage private Policies development through new General Plan and Zoning Ordinance policies) PublicNotification Community Outreach Site posting December 28, 2016 Required Measures Notification by mail December 29, 2016 Newspaper posting December 30, 2015 None Neighborhoods Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Variance Nm 2016-09 as conditioned. Ivan Ur'6zGo' Assistant Planner 11 10:jm 10PIamilog Cc min E 6yw%1351 E Dye MobVSign Vaflarce.pz Attachments: Exhibit 1 —Vicinity Map Exhibit 2 — Land Use Map Exhibit 3 — Site Photo Exhibit 4 — Site Plan 31 C-7 ml 141 Rt : Rl IM Sllfi9 y5+ L' rdi AA fa7 '. R7 Itt Rt SCTU'AtA55 AAIlei iwY l Y Rl ml M1 hA5 Rl In Pit Ml Po ml 82 a.a N �%�1x u1 nnun r 92 r Mt M1 it 50.5 .c a F1r )F Ct 4l Qt. ki' f l(py ..§t Mi 52 !F/F P M11 fol i M1Ai SD.G;S fWrr3 �� f Mt f ! aer Nil 5 jfJ/ {1 / 11 P � 1� ry�idl.° hYl M1 Al CaEMLOCRr„LARI1 1 Fd -45.x] 9AN LaTHMEMWYMUUIM �V. Kn AUC1MMIFXW04 C;; IXA�4TMIfrilriTlUin v? 7ttif5'HNtlivM1k;Atkpdk WA MAtiST AI RAJ1 MMM Mi U4TiAS'3,ASRA, MUITR42C�.]1YM jolu C1 OCTAMUNIIYCCSAA15iA pig NE11Mvwb11HAL LilAIY :gEIMCE CIAT IXF+N0crA1C> vl2MU.A vWIWIPA(a WIWWfNCb'�*iHr�iGht? *Y+ 9.13t�VJAIAPoIpAU'`!'i5 C', 117hNEFOLWAMAL ❑ aA4&7AF A><; ITChlKV167 'W+1T; C3 MOPAL1318R4' P m"FMIMR 9] €S£77F7COkv£It7fAdLRtT CW1 ful RANm L1CY,1MPoLw1y ULLtiiIoN*ji ' 3MFICr M CA f9.ANd3151'^YIiVDCFfiiGi PM PiARRRIifi OWlA.CSZnS%WRJ P. AI.1:CMhAHi'i+'l m SMULRMIMUIDMAL VAR 2016-09 41, MOBIL SERVICE STATION SIGN VARIANCE j".r, 1351 BAST DYER ROAD P L A.. N_-N..I N 'G A N D 6 u I 7. D I PJ G A G E 14 C Y EXHIBIT 1 31 C-8 INDUST. IT11 I Y Li SUB STATION uj w > 0 1-10 1 k L ILHHALL D k' I V t F Z CC HOTEL HOTEL ko U RC1 1-10 T E L HOTEL HOTEL HOTEL F R,0 1, E C T SITE DYER ROAD VACANT VAR 2016-09 MOBIL SERVICE STATION SIGN VARIANCE �& 1351 EAST DYER ROAD F L A N N I ^l A N u 8 IJ I L 0 1 N G 1% u E I LAND USE MAP EXHIBIT 2 31 C-9 VAR 2016-09 MOBIL SERVICE STATION SIGN VARIANCE 1351 EAST DYER ROAD EXHIBIT 3 31 C-10 I EXHIBIT 310.11 31 LS 01.09.17 RESOLUTION NO. 2017-03 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING VARIANCE NO. 2016-09, AS CONDITIONED, TO ALLOW AN EXISTING FREESTANDING SIGN TO REMAIN AT THE MOBIL SERVICE STATION LOCATED AT 1351 EAST DYER ROAD BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Variance No.2016-09 to allow an existing 37 -foot freestanding sign to remain at the property located at 1351 East Dyer Road. B. Pursuant to Section 41-862(b) through Section 41-862(d) of the Santa Ana Municipal Code (SAMC); no freestanding sign shall be located closer than twenty-five (25) feet from a side lot line, a freestanding must provide the site address at the base of the sign, and a freestanding sign for a service station may not exceed thirty-five (35) feet if it is located within three hundred (300) feet of the point where a freeway exit centerline intersects with a city street. C. Variance No. 2016-09 came before the Planning Commission on January 9, 2017, for a duly noticed public hearing. Variance No. 2016-09 would allow an existing 37 -foot freestanding sign to remain at its current location, exceeding the height requirement by two feet; to exceed the distance requirement from a freeway exit by 85 feet referenced in Sec. 41-862 (c)(4) of the SAMC; and to reduce the side lot line setback by three feet. Variance No. 2016-09 will also allow the sign to remain without providing the site address at the base of the sign as required by Sec. 41-862 (d)(5), located at 1351 East Dyer Road. D. The Planning Commission determines that for Variance No. 2016-09 the following findings, which must be established pursuant to Santa Ana Municipal Code (SAMC) Section 41-638 in order to grant a variance from the provision of the Santa Ana Municipal Code, have been established: Resolution No. 2017-03 Page 1 of 5 31 C-12 1. That because of special circumstances applicable to the subject property, including size, shape, topography, location, or surroundings, the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provision of this chapter. The project site has special circumstances related to its location, surroundings, and design. The site is located at the northwest intersection of Dyer Road and Grand Avenue. Removing the existing 37 -foot freestanding sign would eliminate all visibility of the site from potential patrons travelling along California State Route 55 (SR -55). The existing grade of the site is substantially lower than that of SR -55. Approval of the variance would create opportunities on the project site to advertise the services provided by the tenant while revitalizing the site through tenant improvements that are part of the submittal. 2. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. The ability to maintain the existing 37 -foot freestanding sign will help preserve substantial property rights since the site has always operated as a service station. Requiring the applicant to replace the sign with one that restricts the height to seven (7) feet, furthermore denying all visibility from SR - 55, will impact the preservation of full property rights as they have existed since 1968. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The granting of the variance will not be detrimental to the public or surrounding properties. The sign is intended to be visible from the heavily travelled SR -55. The sign will not incorporate any flashing or moving elements that may distract motorists or passersby. Additionally, the structure of the sign is to remain, as conditioned, similar to that of the non -conforming code. Moreover, the site is located in an exclusively commercial and industrial area with no residential communities located in the immediate vicinity. Resolution No. 2017-03 Page 2 of 5 31 C-13 4. That the granting of a variance will not adversely affect the General Plan of the City. The project will not adversely affect the General Plan as the proposed signage is consistent with several goals of the General Plan. Approval of the variance supports Policies 2.7 and 2.8 of Goal 2 (to promote land uses which enhance the City's economic and fiscal viability) and Policies 4.3, 4.4, and 4.5 of Goal 4 of the Land Use Element (to protect and enhance development sites that are unique community assets). In addition, approval of the variance is consistent with the intent and purpose of Goals 1 and 2 of the Urban Design Element (to improve the physical appearance of the City through creating a sense of place, positive community image, and quality environment, and to improve the physical appearance of the City through development that is proportional and aesthetically related to its district setting). Furthermore, approval of the variance supports Objective 2.3 of Goal 2 of the Scenic Corridor Element (to use scenic corridors to provide identity, form, and an orientation framework for the City). E. In accordance with the California Environmental Quality Act, the recommended action is exempt for further review per Section 15301. This Class 1 exemption allows the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination. The sign in question currently exists and will not be structurally altered. In addition, the structure is already served by municipal services, such as roadways, utilities, and parking. Categorical Exemption Environmental Review No. 2016-164 will be filed for this project. Section 2. The applicant agrees to indemnify, hold harmless, and defend the City of Santa Ana, its officials, officers, agents, and employees, from any and all liability, claims, actions or proceedings that may be brought arising out of its approval of this project, and any approvals associated with the project, including, without limitation, any environmental review or approval, except to the extent caused by the sole negligence of the City of Santa Ana. Section 3. The Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Variance No. 2016-09 for 1351 East Dyer Road as conditioned in Exhibit A attached hereto and incorporated herein. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Staff reports and exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. Resolution No. 2017-03 Page 3 of 5 31C-14 ADOPTED this 9" day of January, 2017. AYES: Commissioners: Alderete, Bacerra, Contreras -Leo, McLoughlin, Mendoza, Nguyen, Verino (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) Lynette Verino Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Rosa Barela, Acting Recording Secretary, do hereby attest to and certify the attached Resolution No. 2017-03 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on January 9, 2017. Date: Acting Recording Secretary City of Santa Ana 31 C-15 Resolution No. 2017-03 Page 4 of 5 0a:u X11 Conditions of Approval for Variance No. 2016-09 Variance No. 2016-09 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. In addition, it shall meet the following conditions of approval: The applicant must comply with each and every condition listed belowrip or to exercising the rights conferred by this variance. The applicant must remain in compliance with all conditions listed below throughout the life of the variance. Failure to comply with each and every condition may result in the revocation of the variance. A. Planning Division Any amendment to this variance must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or if the variance must be amended. 2. The existing sign shall not be structurally altered or relocated from the existing location as indicated on the plan per the attached exhibit. 3. Applicant will be responsible for regular maintenance of the freestanding sign. Along with regular maintenance, the sign will be painted to match the building color scheme to reflect consistency in the overall site improvements. 4. Prior to building permit issuance of the proposed tenant improvements, the applicant will submit a formal landscape plan for staff review, including shrubs at the base of the sign. Resolution No. 2017-03 Page 5 of 5 31 C-16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: APPROPRIATION ADJUSTMENT, RESOLUTION AND AGREEMENT ACCEPTING FISCAL YEAR 2016 EMERGENCY MANAGEMENT PERFORMANCE GRANT {STRATEGIC PLAN NO. 1, 2E, 2F, 6C} v � CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 0 As Recommended 0 As Amended ® Ordinance on 1®i Reading Ordinance on 2"d Reading ® Implementing Resolution M Set Public Hearing For CONTINUED TO FILE NUMBER Approve an appropriation adjustment recognizing $53,246 in Emergency Management Performance Grant funds in the Law Enforcement Grants revenue account (no. 12814002-52001), and appropriating same to the Emergency Management Performance Grant expenditure account (no. 12814414 - various). 2. Adopt a resolution authorizing the City Manager to act on behalf of the City of Santa Ana for the purpose of obtaining federal funds, related to homeland security, emergency management and/or disaster recovery, provided by the US Department of Homeland Security and sub -granted through the State of California. 3. Authorize the City Manager and the Clerk of the Council to execute a one-year agreement with the County of Orange, for the period of July 1, 2016 through June 30, 2017, for the Emergency Management Performance Grant to provide assistance with state and local emergency preparedness, in an amount not to exceed $53,246, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION In November 2016, the Santa Ana Police Department applied for the Emergency Management Performance Grant (EMPG), which is funded by the US Department of Homeland Security and passed through the State of California Office of Emergency Services. The EMPG grant is designed to assist state and local emergency management and disaster preparedness programs with employment and development of emergency management staff, development of emergency plans and procedures, and preparing cities for disaster response. The EMPG grant is distributed by population to counties and cities that maintain emergency management staff and meet training, exercising and reporting requirements. The Santa Ana Police Department has received an award from Cal OES in the amount of $53,246 for FY 2016. These funds will reimburse the 55A-1 Emergency Management Performance Grant February 7, 2017 Page 2 City for a portion of the salary and benefits of the Emergency Operations Coordinator position dating back to July 1, 2016. STRATEGIC PLAN ALIGNMENT Approval of these items assists the City in meeting Goal #1 Community Safety, Objective #2 (Broaden communications, information sharing and community awareness of public safety activities), Strategy E (Update the City's Emergency Operations Center (EOC) emergency preparedness plan to include a community evacuation strategy to respond to natural disasters) and Strategy F (Partner with emergency assistance and disaster relief organizations to promote community awareness of emergency preparedness (e.g. citywide community preparedness day)), and Objective #6 (Enhance Public Safety integration, communications and community outreach), Strategy C (Continue to develop and implement joint command level training in collaboration with the Police Department's Emergency Operations Coordinator). FISCAL IMPACT The appropriation adjustment will recognize $53,246 in EMPG Grant funds in the Law Enforcement Grants revenue account (no. 12814002-52001), and appropriate same to the Emergency Management Performance Grant expenditure account (no. 12814414 - various) for FY 2016-17. Police Department funding of the Emergency Operations Coordinator position in Field Operations (account no. 01114420 -various) fulfills the requirement for matching funds. APPROVED AS TO FUNDS AND ACCOUNT: Carlos Rojas Francisco Gutierrez�n.(e� Q Chief of Police Executive Director Santa Ana Police Department Finance and Management Services Agency Exhibits: 1. Resolution 2. Agreement with County of Orange 3. Attachment A Notice of Funding Availability 4. Attachment B Financial Management Forms Workbook 5. Attachment C State Guidance 6. Attachment D Grant Assurances 55A-2 T8 2/7/17 RESOLUTION NO. 2017 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER AND THE CHIEF OF POLICE OF HIS DESIGNEE(S) TO OBTAIN 2016 EMERGENCY MANAGEMENT PERFORMANCE GRANT FUNDS THROUGH THE COUNTY OF ORANGE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The State of California Office of Emergency Services is responsible for Implementing the United States Department of Homeland Security's Emergency Management Performance Grant Program (EMPG). The funds cover the salary costs for personnel involved in emergency management activities as well as the cost of miscellaneous equipment identified on the DHS approved equipment list. B. The County of Orange is a subgrantee of the 2016 EMPG funds and will provide funds to local governments for implementation of countywide emergency management capabilities. C. The City of Santa Ana is one of the subrecipients of the EMPG funds and has been allocated $53,246 of the County of Orange's total EMPG fund. Section 2. The City Council of the City of Santa Ana hereby authorizes the City Manager, on terms acceptable to the City Attorney, to execute a sub -recipient transfer agreement (also called a transfer agreement) with the County of Orange and/or Orange County Sheriff's Department in an amount not to exceed $53,246. Section 3. The City Council of the City of Santa Ana hereby authorizes and directs the City Manager or his designee, on terms acceptable to the City Attorney, to prepare reimbursement agreements for salary costs, equipment, services, or training with the County of Orange pursuant to the guidelines set for in the EMPG program and EMPG Articles, Assurances, Certifications, Terms and Conditions. Section 4. The City Council of the City of Santa Ana hereby approves an Appropriation Adjustment recognizing the FY 2016 Emergency Management Performance Grant in the amount of $53,246 and appropriates same in the FY 2016 Emergency Management Performance Grant expenditure accounts. Resolution No. 2017 -XXX 55A-3 Pagel of 2 TB 217117 Section 5, This Resolution shall take effect Immediately upon its adoption by the City Council and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this 7111 day of February 2017. Miguel A. Pulido Mayor PPROVED AS O FORM: S nia R. CarvalhoT, CltyAttomay MAI VV By amara ogosian Assistant City Attorney AYES: Councilmembers NOES: Councilmembers NOT PRESENT: Councilmembers Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA ❑. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2017 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on February 7, 2017. Date: Clerk of the Council City of Santa Ana 55A-4 Resolution No. 2017 -XXX Page 2 of 2 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19' 20 21 22 23 24 25 26 21 28 AGREEMENT TO TRANSFER FUNDS FOR 2016 EMERGENCY MANAGEMENT PERFORMANCE GRANT PROGRAM THIS AGREEMENT is entered into this -- day of _ N 20", which date is enumerated for purposes of reference only, by and between the COUNTY OF ORANGE, a political psubdivision of the State of California, hereinafter referred to as "COUNTY," and ITV a municipal corporation, hereinafter referred to as "SUBRECIPIEN'I :" WHEREAS, COUNTY, acting through its Sheriff -Coroner Department, hereinafter referred to as SHERIFF, in its capacity as the lead agency for the Operational Area, has applied for, received and accepted the Emergency Management Performance Grant (hereinafter referred to as "the grant") from the California Office of )emergency Services ("Ca10ES"). WHEREAS, the purpose of the grant is to support comprehensive emergency management at. the state, tribal and local levels and to encourage the improvement of prevention, protection, mitigation, response end recovery capabilities for all hazards, as set forth in Attaclivient A hereto (FY2016 6rnergency Management Performance Grants [EMPG] Notice of Funding Opportunity [NOFO]), which is attached hereto and incorporated herein by reference. NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS: I, COUNTY shall transfer to SUBRE'CIPIENT grant funds, in arrears, as necessary to reimburse SUBRECIPIENT for reasonable and permissible expenditures for the grant purposes. Itj. order to obtain grant funds, SLISRECIPIE'NT sball comply with the Instructions and submit to SHERIFF all required information and documentation, as set forth in Attachment H (EMPCI City Pinaucial Management Forms Workbook), which is attached hereto and incorporated borein by reference. 2. Throughout: their useful life, grant property and equipment shrill be used by SUURECIPIENT only for grant purposes in accordance with Attachment A hereto. 3. SUBRECIPIENT shall exercise due care to preserve and safeguard grant property and equipment from damage or destruction and shall provide regular maintenance and such repairs for grant <PnA: 97.042 fimergenoy Mgnngemont Porlormnnuc Grant Depadinent of Mamelend 6ocurity Nige I oN 55A-5 2 3 4 5 6 7 8 9 W, 12 13 14 i5 1.6 17 18 19 20 21 22 23 24 25 26 27 28 property and equipment as are necessary, in older to ]seep said grant property and equipment continually in good working order, 4. If grant property or equipment becomes obsolete, SUBRECIPIFNT shall dispose of it j only in accordance with the ills true tions of COUNTY or the agency from which COUNTY received the grant funds. 5. SUBRECIPIFNT shall submit to the COUNTY grant program reporting documents slid information in accordance with requirements set out in the Attachment C (Emergency Management Performance Grant .Program: California Supplement to the Federal Program Funding Opportunity Announcement; or, The State Guidance), which is attached hereto and incorporated herein by reference. 6, By executing this Agreement, SUBRECIPIFNT agrees to comply with and be fully bound by this Agreement and all applicable provisions of Attachments A, B, C, and D (Standard Assurances for all CaIOFS Federal Grant Programs) hereto, SUBRECIPIFNT shall notify COUNTY immediately upon discovery that it has not abided or no longer will abide by any applicable provision of this Agreement. or Attachments A, B, C, or D hereto. 7, SUBRECIPIFNT agrees to indemnify, defend and save harmless COUNTY and the agency from which COUNTY received grant funds, and their elected and appointed officials, officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, laborers, and any other person, ful" or corporation furnishing or supplying work, services, materials or supplies in connection with SUBRECIPIENT's pet•fonnance of this Agreement, including Attacluments A, B, C, and D hereto, and from any and all olainis and losses accruing or resulting to any person, firm, or Corporation who may be injured or damaged by SUBRECIP112NT in the aarfonnance of this Agreement, including Attachments A, B, C, and D hereto, 8. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by duly authorized representa.tivcs of the parties hereto, and no oral understanding or (greement not incorporated herein shell be bind,ing,on any of the parties hereto. 9. SUBR CIPIENT may not assign this Agreennent in whole or, in part without the express vrilten consent of COUNTY, 'FDA: 97.042 merpricy Mon.aumen( Perromviou ornnl rop0rl)TjM(0M0me19nd Stwurily Page 2 ON y 2 3 4 S 6 7 81 9 10 11 12 13 14 1s 16 17 10. SUBRECIPIENT shall provide to COUNTY all records and Information requested by COUNTYfor inclusion in quarterly reports and such other reports or records as COUNTY may be required to provide to the agency from which COUNTY received grant funds or other persons or l l.. For a period of three years after the final Federal Financial Report hereunder or until all claims related to this Agreement are finally settled, whichever is later, SUBRECIPIENT shall preserve and maintain all documents, papers and records relevant to the work performed or property or equipment acquired in accordance with this Agreement, including Attachments A, B, C, and J3 hereto. For the same time period, SUBRECIPIENT shall make said documents, papers and records available to COUNTY and the agency from Which COUNTY received the grant funds or their drily authorized representative(s), for examination, copying, or mechanical reproduction on or off the .promises of SUBRECIPIENT, upon request, during usual working hours, 13. SUBRECIPIENT and COUNTY shall be subject to examination and audit by the State Auditor Geacral with respect to this Agreement for a period .of three years after tile, final Federal Financial Report hereunder. 13, COUNTY may terminate this Agreement and be relieved of the payment of any ration to SUBRECIPIENT if a) SUBRECIPIENT fails to perform any of the covenants 18 contained in this Agreement, including the applicable terms of Attachments A, B, C, and D hereto, at the 19 time and in the manner herein provided, or b) COUNTY loses funding under the grant. In the event of 20 termination, COUNTY may proceed with the work inany manner deemed proper by COUNTY. 21 14. SUBRECIPIENT and its agents and employees shall act in an independent capacity in 22 the performance of this Agreement, including Attachments A, B, C, and D hereto, and shall not be 23 considered officers, agents or employees of COUNTY or SHERIFF or of the agency froth which 24 11 COUNTY received grant funds, 5 II 1.5. By signing this Agreement, SUBRECEIPfHt; NT understands and agrees that 2 a. Failure to follow grant guidance, including those detailed below, will result in 27 11 ineligibility for any reimbursement under the FY 16 EMPG; 28 CMA: 97.042 Fmvgenq Maangemenl reefomtano omnt [)pMtmwa oPilnmetand Se"Nilp ........ ....... Pabe3 nf4......... . 55A-7 1 3 4 5 6 7 s 9 10 16 1 17 is 19 20 21 22 23 24 l 25 26 27 28 C Er b. A SUBRECIPIENT representative must attend lmlf of the Orange County Emergency Managers Organization meetings geld from July 1, 2416 through June 30, 2017; c. SUBRECIPIENT must maintain National incident Managemcut System (NIMS). compliance; d, For any personnel whose salary is charged to the grant, that specific individual most meet the training and exercise requirements set forthin the grant guidance; and e. Only those expenditures specifically detailed in the Financial Management Fortes Workbook are approved for funding; any changes must be pre -approved by the California Office of Emergency Services. IN WITNESS WHEREOF, the Patties have executed this Agreement in the County of Orange, State of California. DATED: _ _ w 20-- COUNTY OF ORANG Ei, a political subdivision of the State of California By�– Siert f-Corauer "COt1NTY" APPROVED AS TO FORM COUNTY COUNSEL 13y enITTPhi lipsu � ,S-iuor Ocpug — DATED: � _' 20-- SUBRECIPIENT APPROVED AS TO FORM CITY ANTS "ANA By: CITY Bogosian Assistant City Attorney ®r ATTEST: 4� Clerk T ' " DATED: City DA: 97A42 inrgenoy Mwidgement perfunnanee Grant - PArtntentafllomcien4 scourity Page- -- - - .--- - - y • CALIFORNIA GOVERNOR'S OFFICE OF EMERGENCY SERVICES (Cal OES) This tab provides detailed instructions on how to complete the Financial Management Farms Workbook v1.16. For further guidance, please refer to your Program Representative. TAB ISECTION IEXPLANATION INSTRUCTIONS FOR ENABLING MACROS IN EXCEL 2003, EXCEL 2007 AND EXCEL 2010 INSTRUCTIONS FOR ENABLING MACROS- EXCEL 2003 Save the FMFW vi.16 W your computer With the FMFW v1.16 open, click on TOOLS -> MACRO -> SECURQy... Under the SECURITY LEVEL tab, select the MEDIUM or LOW setting. The MEDIUM setting will Prompt you to enable/monce macros each time the file Ia opened. This will prevent potentially unsafe macros from running. The LOW setting will enable macros without pmmpt. It Is recommended that you have virus software Installed and updated if using the LOW setting to prevent unsafe macros from running In other Time. Save, Close, and Re -open the a mkbeok- Macros will be enabled. INSTRUCTIONS FOR ENABLING MACROS- EXCEL 2007 Save the FMFW v1. 16 to your mmput.r Open the FMFW vine Click on the mund Office butted In the top left Click on Excel Options In the lower right of the drop down box Select Popular module along the left side Check the Show Developer tab In the Ribbon option Hit OK Click on the munit Office button In the top left (again) Click on Excel Options In the lower right of the drop down box Select the Trust Center module along the left Click on the Trust Center Settings... button Erhart the Macro Settings module along the left Set the Macro Settings to Enable all macros... Check the Trust access In the VBA project... option HUOK Save, Close, and Reopenthe workbook Macros will be enabled. INSTRUCTIONS FOR ENABLING MACROS- EXCEL 2010 Save the FMFW vl.l6 to your commuter Open the FMFW v1.16 Click on the File tab, choose Options W open the Excel Options tllalog box. Click On Customize Ribbon on the left side of the dialog box Under Choose commands from the left side of the dialog box, select Popular Commands. Under Customize the ribbon on the left side of the dialog box, lent Mal. Tabs and then salsa the Developer check fir% HI[ Our Click on the File tab, chaos. Options to open the Evrel Options dialog box (again). Click an Trust Center on the left side of the dialed box Click on Trust Center Settings from the right side of the dialog box Select Macros Settlors on the left side of the dialog box Under Macro. Settlors dick on "Enable all macros" Check the Trust amass. the VBA project... option Hit OK Save, Close, and Re -open the workbook- Macros will be marled. Note: Some computers may not run Macros correctly even H enabled by Excal. A Non -Mac. vacated of the workbook le available mtdersuch din, uas.Uses. mals Image represents buttons that are placed throughout me Workbook. waimatlons are provided In this sheet on how W use specific buttons. Use the Grant Subaward Face Sheet to apply nor grant programs. Each grant program requires its own separate Grant Subaward Face Sheet. Cal OES Section: The top portion of the form contains blocks for four (4) Important numbers. Please do not NII In these blocks. These numbers will be entered by Cal OES. Please print the Grant Subaward Face Sheet In portrait format. Provide an original signature of the authorized official. The use of white out or tape is omhibited and will invalidate the slgnature on the Grant Subaward Face Sheet. 1. Subrecipient The Subreclplent Is the unit of government or community based organization (CBO) that will have legal responsibility for these grant funds (e.g. County of Alameda, City of Fresno or Women's Place of Merced). Enter the legal title of the Subrecipient. Ia. Federal DUNS Number Enter the full 91 Federal Data Universal Numbering System (DUNS) ID number for the Subreclplent. If the Subrecipient does (Grant Subreclplent) not yet have a DUNS number assigned, one may be obtained by contacting Dun & Bradstreet at 866-705-5711 or at www.dnb.com. This applies to federally funded grants only. Your DUNS # must be current and active In the System for Award Management (SAM) at the time of your Award. 2. Implementing Agency Enter the complete name of the enc responsible for the day -to -da o operation of the rant e. Sheriff, Police Department, or P agency PY P dr (, P 4. Location of Project Department of Public Works). If the Implementing Agency is the same as the Grant Subrecipient, enter the same title again. 2a, Federal DUNS Number Enter the full 9 -digit Federal Data Universal Numbering System (DUNS) ID number for the Implementing Agency. If the (Implementinq Agency) Implementing Agency does not yet have a DUNS number assigned, one may be obtained by contacting Dun & Bradstreet at 866- 705-5711 or at www.dnb.com. This applies to federally funded grants only. Your DUNS # must be current and active in the System for Award Management at the time of your Award. 3. Implementing Aqency Address Enter the address of the Implementing Agency. Provide the complete nine digit zip code (Zip+4). 4. Location of Project Enter the City and County/Operational Area where the project is located. Provide the complete nine digit zip code (Zip+4). 5. Disaster/Program Title Enter the name of the Disaster or Program providing the funds for this grant award. A disaster may be referred by the federal declaration number. Program titles should be complete without the use of acronyms. 6. Performance Period Enter beglnninq and ending dates of the performance period for the grant (mm/tld/yyW). 7, Indirect Cost Rate Indicate whether you are using the 10% he hit rate based on Modified TOGI Direct Casts (MTDC) or your current cognizant agency approved indirect cost rate agreement. A copy of the approved ICR Negotiating Agreement must be enclosed with your application. Indicate N/A If you will not be claiming Indirect costs under the award. Indirect costs mayor may not be aiiawabte un der all Federal fund s.or... SA. - 12G. Fund Allocations For each fund source used in the program, select the correct grant year and acronym from the drop down lists, the amount of and Total Project Cost State or Federal grant funds requested, the amount of cash and/or in-kind match contributed and the resulting totals. Please do not enter both State and Federal on the same line. Block 12G should correspond to the total project cost specified in the budget. 13. Certification Paragraph Please review the Certifnatim Paragraph. 14. Official Authorized to Sign for Enter the name, title, telephone number, and e-mail address of the official authorized to enter Into the Grant Subaward the Subreclplent Agreement for the Grant Subreclplent as stated In Block 1 Of the Grant Subaward Face Sheet. Enter the Payment Malling Address where grant funds should be sent. 15, Federal Employer ID Number Enter the 9 -digit Federal Employer Identification Number for the Implementing Agency. FMFW vl.16-1016 55A-9 a Provide information on additional Authorized Agents (AA) and Grant Program Contacts. Additional Authorized Agent Provide the contact Information of any additional Authorized Agents (AA) and staff related to grant activities. R Is recommended Contact Information that more than one person be designated as the Authorized Agent (AA) so that If one AA Is not available, a second AA can sign the requests for reimbursements. Use the FFATA Financial Disclosure to provide Information required by the Federal hunalr If your organization Is not subject to the FFATA Financial Disclosure requirements, check box at the bottom of the page. Executive Name Provide the full name of the executive. Title Provide the title of the executive. Annual Salary Provide the annual salary of the executive. Annual Dollar Value of Benefits Provide the Annual Dollar Value of Benefits. Total Compensation Automatic calculation of Annual Salary and Annual Dollar Value of Benefits. Warning) Do not enter Informa0on'm this column, contains formulas. �' Use the Project Descriptions to describe the various details of each Project. Maximum of 20 projects are allowed. Project Enter the letter (required) and name (optional) of each project. A maximum of 20 projects are allowed (ATC. NPG Mission Area Select a National Preparedness Goal (NPG) Mission Area from the drop down menu that corresponds to your project. NPG Core Capabilities Link the National Preparedness Goal (NPG) Core Capability that match to each of your Mission Area projects. Cal GIES Goals Select a Cal OES Goal from the drop dawn menu option that corresponds to your project. Project Description Provide a detailed but concise description of the project. Note: Do not exceed 1,000 characters (Including Punctuation and spaces). Ward Wrap feature will terminate after this limp and text will not be vlelble. Match Description Provide a detailed Match Description. Need Explain why this project Is needed and how this need was determined. Project Milestone & Justification Provide estimates on milestones for your projects In terms of percentage completeness and amounts expended for the next 6 and 12 months. Leave month blank. Use this ledger to submit funding Information for projects, as well as submitting Reimbursement Requests and Modifications. Nota: eutter, on all ons (Project, Planning, Organlzation, Equipment, Training, Exercie, fol consultant, Personnel and Match) perform the same tasks. Descriptions will only be mentioned in this Sector ex the Inshudwe pace. Ledger Type Using the Macro buttons, specify what type of ledger is being completed (Initial App, Reimbursement Request, Modification). Complete the additional Information that displays below the ledger type (Today's Data, Expenditure Period and Request 8). Ledger will not be accepted without this information. New Modification Use this button to create a single new line item modification. The selected row will turn Its font color to red with the strikethrough property (to Indicate an Incorrect Item) and create a copy of Itself. Modify the copied row (automatically colored In blue font) as needed. New REIMB/MOD Request Use this button to create a copy of the Project Ledger to submit Reimbursement or Modification requests. After clicking the button, enter the name of the request and press enter. The copy will place Itself accordingly before the Planning tab. If Macros are disabled, a copy of the Project Ledger can be created manually by performing the following steps: Right click on the 'Project Larger' tab �> Select MOVE OR COPY... from the list of options o Place the copy before the Planning tab but after the last working Project Ledger .> Check CREATE A COPY-> Click OR. Rename the coaled Project Ledger appropriately to refiect a Reimbursement request or Modification. Row Size Auto Use this button to automatically resize ALL rows In your project ledger to fully display text that Is not visible. Row Size 15 Use this button to automatically resize all rows to a height of 15 pixels. Formula Reset If formulas are Inadvertently deleted, use this button to reset all formulas. Black/Red/Blue buttons Use these buttons to change font calors. Selection will change the color of only what is selected. Row will change the color of (All tabs) only the row which contains the active cell (the cell that Is currently selected). Use Selection buttons to change font colors on multiple rows. Project Select the project letter from the drop-down list, or manually enter the letter In capitalization format. Direct/Subaward Use the drop-down list to identify If the Project is Direct or Subaward Project Name Enter the name of the project. Fundlnq Source Select a Funding Source from the drop-down list. A full description of the Funding Source can be viewed In Comments (place corset over Column D, Raw 21). Discipline Select a Dlsdpllne from the drop-down list. A full description of the Disciplines can be viewed In Comments (place curser over Column E, Row 21). Solution Area Select a Solution Area from the drop-down list. Solution Area Sub -Category Select a Solution Area Sub -Category from the drop-down list. This list Is dependent on a selection from the Solution Area Category drop -dawn list. The Solution Area Sub-Categary will not display the drop-down list unless a Solution Area Category Is selected. Total Obllgated Enter the total amount of grant funding obligated for each project In this column, FMFwv1.16-2016 55A-10 FMFW vLl6 2016 Amount Approved Previous Automatic calculation of Amount Approved Previous. Warnings oo not enter information in this column, contains formulas. Amount This Request For Reimbursement requests, enter the requested amount of reimbursement in this column. Match Amount If match amount Is required, place the amount In this column. If not required, disregard this column. Total Approved Automatic calculation of Total Approved. warnmgi Donot enter Information in this column, contains formulas. Remaining Balance Automatic calculation of Remaining Balance. Warnmgi Do not enter mmrmaoioo In this coiumn, contains formulas. Percent Expended Automatic calculation of Percentage Complete. wamingl Do"center har" on In this column, contains moorings. Provide detailed Information on Planning activities. NOTE: Consultants and Contractors are used interchangeably and changes for either requi completion of the Consultant/Contractor tab. Staff salaries and Staff Intelligence Analyst expenditure categories require the completion of the Personnel tab. Project Select the project letter from the drop-down list, or manually enter the letter in capitalization format. Direct/Subaward Use the drop-down Ilk to Identify if the Project is Direct or Subaward Planning Activity Enter the planning activity. Funding Source Select a Funding Source from the drop-down list. A full description of the Funding Source can be viewed In Comments Provide detailed information on Organizational activities. NOTE: Consultants and Contractors are used interchangeably and changes for either req (place purser over Column D, Row 21). Discipline Select a Discipline from the drop-down list. A full description of the Disciplines can be reviewed in Comments Project (place curser over Column E, Row 21). Solution Area Sub -Category Select a Solution Area Sub -Category from the drop-down list. Expenditure Category Select an Expenditure Category from the drop-down list. This list Is dependent on a selection from the Solution Funding Source Area Sub -Category drop-down list. The Expenditure Category will not display the drop-down list unless a Solution Amount Approved Previous Area Sub -Category Is selected. Final Product Enter a description of the final Droduct of this planning activity. This must be a enable Item such as Reimbursement Request Number a manual, procedure, etc. Please contact your Program Representative for further examples of final products. Hold Trigger Projects may be placed on hold. Please select an option from drop-down list. Approval Date Enter the approval date. Part of a Procurement over 150k Select YES or NO from the drop -dawn list. Sole Source Involved Select YES or NO from the drop-down list. Budgeted Cost Enter the total amount of grant funding budgeted for each project In this column. Amount Approved Previous Automatic calculation of Amount Approved Previous. I Warningl Do not enter Information in this column, contains formulas. Amount This Request For Reimbursement requests, enter the requested amount of reimbursement in this column. Reimbursement Request Number Enter the Reimbursement Request number for this planning activity. Total Approved Automatic calculation of total reimbursed. Wemingl Do not enter Inmrmatlon In this column, contains formulas. Remaining Balance Automatic calculation of Remaining Balance. Warning; Do not enter Inmrmatlon In this column, contains formulas. Provide detailed information on Organizational activities. NOTE: Consultants and Contractors are used interchangeably and changes for either req the completion of the Consultant/Contractor tab. Staff salaries and Staff Intelligence Analyst expenditure categories require the completion of the Personnel tab. Select an Expenditure Category from the drop-down list. This list Is dependent on a selection from the Solution Project Select the project letter from the drop-down Ilk, or manually enter the letter In capitalization format. Direct/Subaward Use the drop-down list to Identify if the Project is Direct or Subaward Organization Enter the organizational activity. Funding Source Select a Funding Source from the drop-down list. A full description of the Funding Source can be viewed in Comments Amount Approved Previous (place curser over Column D, Row 21). Discipline Select a Discipline from the drop-down list. A full description of the Disciplines can be viewed in Comments Reimbursement Request Number (place curser over Column E, Row 21). Solution Area Sub -Category Select a Solution Area Sub -Category from the drop-down list. Expenditure Category Select an Expenditure Category from the drop-down list. This list Is dependent on a selection from the Solution Area Sub -Category drop-down list. The Expenditure Category will not display the drop-down Ilk unless a Solution Area Sub -Category is selected. Detail Select a Detail option from the drop-down list. Budgeted Cost Enter the total amount of grant funding budgeted for each project in this column. Amount Approved Previous Automatic calculation of Amount Approved Previous. I WamiW or not enter lnformatfon In this column, contains formulas. Amount This Request For Reimbursement requests, enter the requested amount of reimbursement In this column. Reimbursement Request Number Enter the Reimbursement Request number for this organizational activity. Total Approved Automatic calculation of total reimbursed. Wurningl Do notenter information in this column, contalnsm ls. Remaining Balance Automaticcalculatlon of Remaining Balance. Warnmgi Do not enter mformanon In this column, contains formulas, 55A-11 Provide detailed information on Equipment that Is purchased with grant funding. Project Select the project letter from the drop-down list, or manually enter the letter in capitalization format. Equipment Description Provide a description of equipment and quantity. If Item is Moble or Portable Identify as such. & (Quantity) AEL Number & Title Place the AEL Number and Title In these columns. The AEL Number and Title can be obtained from the following link: hit '/A..f / N d t-1' t SAFECOM Compliance Select YES, NO or N/A from the drop -dawn list. Funding Source Select a Funding Source from the drop-down list. A full description of the Funding Source can be viewed in Comments (place cursor over Column F, Row 21). Discipline Select a Discipline from the drop-down list. A full description of the Disciplines can be viewed in Comments (place curser over Column G, Row 21), Solution Area Sub -Category Select a Solution Area Sub -Category from the drop-down list. Invoice Number Enter the Invoice Number for the equipment. Vendor Name Enter the name of vendor from whom the equipment was purchased. ID Tag Number Enter the 10 Tag Number used to identify this equipment with. Subgrantee may use their own Internal numbering format to tag equipment. ID Tag Number must be available during monitoring visits. Condition and Disposition Enter the condition of equipment by selecting the appropriate drop-down Item. If the equipment Is not in use, please use the following column (Deployed Location) to explain. Deployed Location Enter the equipments current location. Acquired Date Enter the date that this equipment was acquired from vendor. Part of a Procurement over 150k Select YES or NO from the drop-down list. Sole Source Involved Select YES or NO from the drop-down list. Hold Trigger Projects may be placed an hold. Please select an option from drop-down list. Approval Date Enter the approval date. Budgeted Cost Enter the total amount of grant funding budgeted for each project in this column. Amount Approved Previous Automatic calculation of Amount Approved Previous. warning) Do notemer Information in mi: column, contains formulas. Amount This Request For Reimbursement requests, enter the requested amount of reimbursement In this column. Reimbursement Request Number Enter the Reimbursement Request number Total Approved Remaining Balance Provide detailed Information on 1 either require the completion of completion of the Personnel tab. Project Dlrect/Subaward Course Name Funding Source Discipline Solution Area Sub -Category Expenditure Category Feedback Number Traininq Activity Hold Trigger Approval Date Total # Trainee(s) Identified Host Part of a Procurement over 150k Sole Source Involved FMFWvl, 162016 Budgeted Cost Automatic calculation of total reimbursed. Warning) Do not entor information In this column, contains formulas. Automatic calculation of Remaining Balance. Warntngl Do not enter information in this column, contains Nrunins. ned or attended training courses. NV I C Lonsuhants are correctors are usea mcercira lgeaoly and War Consultant/Contractor tab. Staff salaries and Staff Intelligence Analyst expenditure categories require the Select the project letter from the drop-down list, or manually enter the letter In capitalization format. Use the drap-down list to Identify if the Project Is Direct or Subaward Enter course name. Select a Funding Source from the drop-down list. A full description of the Funding Source can be viewed In Comments (place curser over Column D, Row 21). Select a Discipline from the drop-down list. A full description of the Disciplines can be viewed In Comments (place curser over Column E, Row 21). Select a Solution Area Sub -Category from the drop -dawn list. Select an Expenditure Category from the drop-down list. This list Is dependent on a selection from the Solution Area Sub -Category drop-down list. The Expenditure Category will not display the drop -dawn list unless a Solution Area Sub -Category Is selected. Enter the feedback number for this training activity. The Feedback number can be obtained from the Cal OES website: htur ftwot.calossea.aov Click on Cal DES Divisions, then click on California Specialized Training Institute. Scroll to the bottom of the page, click on the TRAINING REQUEST FORM link. Please Identify your training activity from the drop-down list. Projects may be placed on hold. Please select an option from drop-down list. Enter the approval date. Enter the total number of trainee(s). If you are not the host, please Identify who Is the host. For further guidance, please refer to your Program Representative. Select YES or NO from the drop-down list. Select YES or NO from the drop-down list. Enter the total arr3sAt Enan2dgeted for each project In this column. FMFW v1.16 - 2016 Amount Approved Previous Automatic calculation of Amount Approved Previous. warnmui oo nooenrer informaeon to this commn, contains formula s. Amount This Request For Reimbursement requests, enter the requested amount of reimbursement in this column. Reimbursement Request Number Enter the Reimbursement Request number for this training activity. Total Approved Automatic calculation of total reimbursed. warning[ Do nor enter information In this roIrrn , contains formwas. Remaininq Balance Automatic calculation of remaining balance. wammgl Do not enter Information In this column, contains formulas. Provide detailed information on Exercise activities. Consultants and Contractors are used interchangeably and changes for either require the completion of the Consultant/Contractor tab. Staff salaries and Staff Intelligence Analyst expenditure categories require the completion of the Personnel tab. Exercise Activity Project Select the project letter from the drop-down list, or manually enter the letter In capitalization format. Direct/Subaward Use the drop-down list to Identify if the Project is Direct or Subaward Exercise Title Enter the title of the exercise activity. Funding Source Select a Funding Source from the drop-down list. A full description of the Funding Source con be viewed In Comments Select YES or NO from the drop-down list. (place outset over Column D, Row 21). Discipline Select a Discipline from the drop-down list. A full description of the Disciplines can be viewed In Comments Automatic calculation of amount approved previous. Wami l Do notenter Information In this column, contains formulas. (place rubber over Column E, Row 21). Solution Area Sub -Category Select a Solution Area Sub -Category from the drop-down list. Expenditure Category Select an Expenditure Category from the drop-down list. This list Is dependent on a selection from the Solution Funding Source Area Sub -Category drop-down list. The Expenditure Category will not display the drop-down list unless a Solution Area Sub -Category Is selected. Hold Trigger Projects may be placed on hold. Please select an option from drop-down list. Approval Date Enter the approval date. Date of Exercise Enter the date of when this exercise was conducted. Exercise Activity Please select your exercise acdvlty from the drop-down list. Identified Host If you are not the host, please identify who Is the host. For further guidance, please refer to your Program Representative. Date AAR e-mailed to HSEEP Enter the date that the After Action Report (AAR) was e-mailed to hseepMema.dhs.gov. Part of a Procurement over 150k Select YES or NO from the drop -dawn list. Sole Source Involved Select YES or NO from the drop-down list. Budoeted Cost Enter the total amount of chant fundinq turreted for each project In this column. Amount Approved Previous Automatic calculation of amount approved previous. Wami l Do notenter Information In this column, contains formulas. Amount This Request For Reimbursement requests, enter the requested amount of relmbursement In this column. Reimbursement Request Number Enter the Reimbursement Request number for this exercise acttvlty. Total Approved Automatic calculation of total reimbursed. warmngf oo notenter information in this commn, contains formulas. Remaining Balance Automatic calculation of remaining balance. warnNgl oo not enter mfomiatlon In this column, contains formulas. in detailed Information on M&A activities. Consultants and Contractors are used interchangeably and changes for either require the completion Consultant/Contractor tab. Staff salaries and Staff Intelligence Analyst expenditure categories require the completion of the Personnel tab. Project Select the project letter from the drop-down list, or manually enter the letter in capitalization format. Activity Provide detalled Information an M&A activity. Funding Source Select a Funding Source from the drop-down list. A full description of the Funding Source can be viewed in Comments (place chosen over Column D, Row 21). Discipline Select a Discipline from the drop-down list. A full description of the Disciplines can be viewed In Comments (place curse over Column E, Row 21). Solution Area Sub -Category Select a Solution Area Sub Category from the drop-down list. Expenditure Category Select an Expenditure Category from the drop-down list. This list is dependent on a selection from the Solution Area Sub Category drop-down list. The Expenditure Category will not display the drop-down list unless a Solution Area Sub -Category is selected. Detail Select a Detall option from the drop-down list. Budgeted Cost Enter the total amount of funding budgeted for each project in this column. Amount Approved Previous Automatic calculation of amount approved previous. warrpngf oo notenter Inmrmahon in this column, contains formulas, Amount This Request For Reimbursement requests, enter the requested amount of reimbursement In this column. Reimbursement Request Number Enter the Reimbursement Request number. Total Approved Automatic calculation of total reimbursed. warningf oo not enter information In this column, wntalns formulas. Remaining Balance Automatic calculation of remaining balance. warningr Do not enter information In this column, mnwins formulas. 55A-13 If claiming Indirect costs under the award, provide detailed Information on the total estimated indirect costs and the indirect cost rate at which, you will be claiming. If you have a federally -approved rate, provide Information on the direct cost base on which, the rate Is calculated, e.g., Salary and Wages (S/W), Salary, Wages and Benefits (SW&B), Total Direct Costs (TDC), Modified Total Direct Costs (MTDC), the De Minimis Rate of 10% of MTDC (10% MTDC). or another base (Other). Project Select the project letter from the drop-down list, or manually enter the letter In capitalization format. Activity Provide detailed Information on Indirect Cost activity. Funding Source Select a Funding Source from the drop-down list. A full description of the Funding Source can be viewed In Comments (place (place curser over Column F, Row 21). curser over Column D, Row 21). Solution Area Sub -Category Select a Solution Area Sub -Category from the drop-down Ilst. ICR Base Select an JCR Base from the drop-down list. Rate Enterthe Percentage Rate. Budgeted Cost Enter the total amount of grant funding budgeted for each project In this column. Amount Approved Previous Automatic calculation of amount approved previous. Werali on not enter infamalso In this column, contains formulas. Amount This Request For Reimbursement requests, enter the requested amount of reimbursement In this column. Reimbursement Request Number Enter the Reimbursement Request number. Total Approved Automatic calculation of total reimbursed. Winning, Donotenter lnrcrmationinthls column, contains fo,mulas Remaining Balance Automatic calculation of remaining balance. Wanningi Do notenter Information in this column, contomsformulas. Provide information on who is being paid with grant funds, and what consultant/contractor costs are being charged to the grant. Project Select the project letter from the drop-down list, or manually enter the letter in capitalization format. Consulting Firm Provide the name of the Consulting Firm and Consultant Name. & Consultant Name Project & Description of Services Provide detailed Information on the project and description of services. Deliverable If your consultant/contractor invoiced you for their services using a fee for each deliverable ($10,000 for a reverse 911/telephone (place curser over Column F, Row 21). emergency notification system), then describe the product In the Deliverable column, Solution Area Select a Solution Area from the drop-down list. Solution Area Sub -Category Select a Solution Area Sub Category from the drop-down list. This list is dependent an a selection from the Solution Area Category drop-down list. The Solution Area Sub -Category will not display the drop-down list unless a Solution Area Category Is Category drop-down list. The Solution Area Sub -Category will not display the drop-down list unless a Solution Area Category Is selected. selected. Expenditure Category Select an Expenditure Category tram the drop-down list. This list is dependent on a selection from the Solution Area Sub - Provide the Total Salary and Benefits Charqed for the Reporting Period Category drop-down list. The Expenditure Category will not display the drop -dawn list unless a Solution Area Sub -Category Is selected. Period of Expenditure Enter the Period of Expenditure In this column. Fee for Deliverable If your consultant/contractor Invoiced you for their services using a fee for each deliverable ($10,000 for a reverse 911/telephone emergency notlficabon system), then FlII In the cost for the product in the Fee for Deliverable column. Billable Hour Breakdown section If your consultant/contractor Invoiced you for their services using an hourly rate ($50/hour for 10 hours of work), then III In the three (3) columns of the Billable Hour Breakdown. Reimbursement Request Number Enter the Reimbursement Request number. Total Cost Charged to this Grant Enter the Total Cost Charged to the Grant In this column. Provide information on who is being paid with grant funds, and what staff costs are being charged to the grant. Project Select the project letter from the drop-down list, or manually enter the letter In capitalization format. Employee Name Provide the name of the employee. Project/Deliverable Provide detailed information on the project and description of services. Funding Source Select a Funding Source from the drop-down list, A full description of the Funding Source can be viewed In Comments (place curser over Column E, Row 21), Discipline Select a Discipline from the drop-down list. A full description of the Disciplines can be viewed In Comments (place curser over Column F, Row 21). Solution Area Select a Solution Area from the drop -dawn list. Solution Area Sub -Category Select a Solution Area Sub -Category from the drop-down list. This list Is dependent on a selection from the Solution Area Category drop-down list. The Solution Area Sub -Category will not display the drop-down list unless a Solution Area Category Is selected. Dates of Payroll Period Provide the Dates of the Payroll Period. Total Salary and Benefits Charged Provide the Total Salary and Benefits Charqed for the Reporting Period for this Reporting Period Total Project Hours Enter the Total Project Hours in this column. FNM ==B-2016 55A-14 Reimbursement Request Number Enter the Reimbursement Request number. Total Cost Charged to this Grant Enter the Total Cost Charged to the Grant In this column. Provide detailed information on Match (Not applicable for all grants). Project Select the project letter from the drop-down list, or manually enter the letter In capitalization format. Direct/Subaward Use the drop-down list to Identify If the Project Is Direct or Subaward Project Name Enter the name of the project. Funding Source Select a Funding Source from the drop-down list. A full description of the Funding Source can be viewed In Comments (place curler over Column D, Row 21). Discipline Select a Discipline from the drop-down list. A full description of the Disciplines can be viewed In Comments (place curser over Column E, Row 21). Solution Area Select a Solution Area from the drop-down list. Solution Area Sub -Category Select a Solution Area Sub -Category from the drop-down list. This list Is dependent on a selection from the Solution Area Category drop-down list. The Solution Area Sub -Category will not display the drop-down list unless a Solution Area Category Is selected. Type of Match Select the Type of Match options from the drop-down list Total Obligated Match Enter the total obligated match amount for this project in this column. Previous Match expended Automatic calculation of amount approved previous. WarnlaPl Dona eUcrinformauon In this caumn, contalns formulas. Current Match For Reimbursement requests, enter the current match amount In this column. Reimbursement Request Number Enter the Reimbursement Request number for this reimbursement. Total Match Expended Automated calculation of Total Match Expended. Wamingl Do not enter information in this column, contains formulas. Remaining Balance Automatic calculation of Remaining Balance. Warningl Do notenter in -,tion in this column, contalns formulas. Percentage Expended Automatic calculation of Percentage Expended. Warning! Do notlenter Information In this column, contains formulas. Authorized Agent sheet must accompany ALL Reimbursement Requests, Modifications and the Initial Application. Type Click on the appropriate button W describe what type of workbook is being submitted. Available options are: INITIAL APPLICATION, REIMBURSEMENT REQUEST, FINAL REIMBURSEMENT REQUEST and MODIFICATION Expenditure Period Dates Enter the beginning and ending expenditure period dates. REIMBURSEMENT REQUEST: Expenditure periods are decided by the Subreciplent and can span single or multiple months at a time. NOTE: Expenditure Periods cannot cross state fiscal year. Modifications do not require expenditure period entries. REHAB or MOD Request # Enter the REIMB or MOD Request # that is associate with the most recent request. Amount This Request Enter the amount that Is being requested. Authorized Agent Enter the name of Authorized Agent. Sign and date after printing. Original signature required. Send hard copy of workbook W address (provided). Emergency Manisa ement Performance Grants (EMPGI: Mail workbook to: California Governor's Office of Emergency Services Program Specialist's Name 3650 Schriever Avenue Mather, CA 95655 FMFw v1.16-2e1a 55A-15 55A-16 (Cal OES Use Only) Cal OES # 059-00000 RIPS # 059-00000 1 VS# Subaward # 2016-0010 CALIFORNIA GOVERNOR'S OFFICE OF EMERGENCY SERVICES GRANT SUBAWARD FACE SHEET The California Governor's Office of Emergency Services (Cal OES) hereby makes a Grant Subaward of funds to the following: 1. Subrecipient: County of Orange 1a. DUNS#: 00-965-7602 2. Implementing Agency: City of Santa Ana 2a. DUNS#: 08-315-3247 3. Implementing Agency Address: 60 Civic Center Plaza Santa Ana 92701-1981 treet City Z1p+4 4. Location of Project: Santa Ana Orange 92701-1981 City County Zip+4 5. Disaster/Program Title: Emergency Management Performance Grant 6. Performance Period: 07/01/16 to 06/30/17 7. Indirect Cost Rate: ❑ N/A; 0 10% de Minimis; ❑ Federally Approved ICR; Grant Fund Source A. State B. Federal C. Total D. Cash Match E. In -Kind F. Total Match G. Total Year Match Project Cost 2016 8. EMPG $53,246 $53,246 $53,246 $106,492 Select 9. Select Select 10, Select Select 11. Select 120. mW Prolaot cost. 12. TOTALS $53,2461 $53,246 1 $53,246 $53,2461 $106492 13. This Grant Subaward consists of this title page, the application for the grant, which is attached and made a part hereof, and the Assurances/Certifications. I hereby certify I am vested with the authority to enter into this Grant Subaward, and have the approval of the City/County Financial Officer, City Manager, County Administrator, Governing Board Chair, or other Approving Body. The Subrecipient certifies that all funds received pursuant to this agreement will be spent exclusively on the purposes specified in the Grant Subaward. The Subrecipient accepts this Grant Subaward and agrees to administer the grant project in accordance with the Grant Subaward as well as all applicable state and federal laws, audit requirements, federal program guidelines, and Cal DES policy and program guidance. The Subrecipient further agrees that the allocation of funds may be contingent on the enactment of the State Budget. 14. Official Authorized to Sign for Subrecipient: Name: David Cavazos Telephone: 714-647-5200 FAX: (area code) (area code) Payment Mailing Address: 60 Civic Center Drive 15. Federal Employer ID Number: 95-6000785 Title: Email: dcavazos@santa-ana.org City: Santa Ana Zip+4: 92701 1981 Signature: Date: (FOR Cal OES USE ONLY) I hereby certify upon my personal knowledge that budgeted funds are available for the period and purposes of this expenditure stated above. Cal DES Fiscal Officer Date Grant Award Face Sheet - Cal DES 2-101 (Revised 7/2015) 55A-1 7 Cal OES Director (or designee) Date 55A-18 V O m LL V 5 � E v E - w w o N iei M n V n V' � c m v a C a C N O N O N n m iv m c m n 3S. c m m 0 m a�p N N 1 2 W v QV Is G _U U E N s` a 0 U 0 w w O m c � c E m i iv Z v v i2 � v 0 o � U 55A-20 N d' O ri C) N 0 c E 0 u 5 F c 9 p ° C W N A N � � Y m N Q � O p a a v ++ c a O v � � c xu I/m O � G N ° O E E J ¢ a C m v •_ y � O U.l O O � c � > 76 IL N ° < E° v u a c � o M O m O q i A m � c w E Q ° LL N ¢ W O °U C _ N Q H N i 46 J 0 N > ❑ V Ih W .E N w u� n z � W E v O C N yl E O N y OJ C > > WS O O O N C O N C v LLc w v� y o a c< O E E z N 01 > c � m p O O 2. 0 o 0 0 C o o O U o No N 55A-22 v a v = a — v v v v a — a 1n::c:' nw as � E 2 l0 N M L E .6 5 Lys o M o m E v m E E .CE tC N ,CE L N $ v C N vE'o ov oa Ev v E o E n E E n o�Nr c d oa o� ti �� o� o n v c v c v c v c is in Q 6 o Emc°c�._v E 3ocmmvL"o c10c ��d=m-�� ai N.v,v� Q �u Ya = v co C a c o E o n'n m ' q o 'A = F Y m LL c o'm c v w v m a a v o m 'E �-� o v L" Y' E F w > iO v L c 3 v N a 'o .v, `o m v c a w a s a v m o v o a Y p 0 �.o x a aci}v+ o a> E -5m a V,'o c a O a p o m E v c o 8Yn _ v m:o m E �� v v g o E '^ c a a p m o v o w m c m m Q m $ c n{ L O L O E o 'n �v2 m a a C= v m F IL -- C O v m O ' 3 m o 'a° E E 3 v a 'aO E E 0 3 V N OU' N O W 'C L O U" N pCj O V o 016 U� U O V OI D'� N o F� y E v O O F� Lir vE v o oE c o E E �v v- yo 2m,m NGV aL,vm o Ziv c `m o�'c° E o m m o m m a ' a m w o w L E c v c E Ta .L o a o o a__ v w5 n �a0 L� v o.'o'.a SFE a 3aYcl oLL v c . m o c :' a� c v E w o y c a G c a o a v m w o m c act_ = m o uU ao a O Q �, Ea U S m E Fo n = K F n o o._ O r o m vo Lvv w m n 5: W f C ,P N v O 'm oo ..a, o `o, m v ic1 a to m > m E o Gv ov m v `o o o 0 N o � v v42 m n v S N L C a+ y L a m m c m c v m m `o a a Q v v c' o o n n Z w Q m EP „ v v n o d 55A-24 0.l'3 n .. 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N O Y S O c v ~ o u o p CEn c c U v , . aO Y C' z N O a M �O O Ol O O O O I� �O l0 M M Ol R W Vl Ln M M O O N M V N O 00 N W O T N N N rl O Olc l tY O Ol 4l1 O W 'Q I� V1 N n n W N V1 Lf1 M Ol N 1l1 W I� If1 LO N O N N d° a a 4 N` 11 m in O N ry O 41 OM N .Mi N .moi c co U;. Y C' U 9.. u'r W" N; 16 N I�.-�R M1D 01010 h10M V R W 111M 10N MlDN p B W O 1001 R O Ian N Ori W. - i N.i L(tMNORO 10 M �.y q tll Oti .-f M 111N. RIS -i ROO W t0 In d' i�ulNnn W NI�OM01N IlIM.a OJ I�MlON RO N .y .i .-i b M V U m O.o m g >ou om mm `wm o'. 'v Emv�joom��mv_val,10Ecc E� f11 Yn -O ,gyp a o N m d� c N acv C7 C 0] .O 2 a o o � C u om¢ c `.9 O� c� C E J Vl v 5 aci oc m m:Q¢ ff1 U (D :(Ln u W = G � O F d 7 7 55A-68 55A-69 55A-70 Attachment A The Department of Homeland Security (DHS) Notice of Funding Opportunity (NOFO) Fiscal Year 2016 Emergency Management Performance Grant Program (EMPG) NOTE: Eligible recipients who plan to apply for this funding opportunity but who have not obtained a Data Universal Numbering System (DUNS) number and/or are not currently registered in the System for Award Management (SAM), should take immediate action to obtain a DUNS Number, if applicable, and then to register immediately in SAM. It may take 4 weeks or more after the submission of a SAM registration before the registration becomes active in SAM, then an additional 24 hours for Grants.gov to recognize the information. Information on obtaining a DUNS number and registering in SAM is available from Grants.gov at: hqp://www.grants.ggv/web/grants/register.html. Detailed information regarding DUNS and SAM is also provided in Section D of this NOFO, subsection, Content and Form of Application Submission. A. Program Description Issued By U.S. Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), Grant Programs Directorate (GPD) Catalog of Federal Domestic Assistance (CFDA) Number 97.042 CFDA Title Emergency Management Performance Grant (EMPG) Program Notice of Funding Opportunity Title Emergency Management Performance Grant Program NOFO Number Grant Program Title NOFO Number EMPG — Region I DHS -I6 -GPD -042-01-01 EMPG — Region II DHS -I6 -GPD -042-02-01 EMPG — Region III DHS -I6 -GPD -042-03-01 EMPG — Region IV DHS -I6 -GPD -042-04-01 EMPG —Region V DHS -I6 -GPD -042-05-01 EMPG — Region VI DHS -I6 -GPD -042-06-01 EMPG — Region VII DHS -I6 -GPD -042-07-01 EMPG —Region VIII DHS -I6 -GPD -042-08-01 EMPG — Region IX DHS -I6 -GPD -042-09-01 EMPG —Region X DHS -I6 -GPD -042-10-01 Page 1 of 46 FY 2016 EMPG 55A-71 Authorizing Authority for Program Section 662 of the Post -Katrina Emergency Management Reform Act of 2006 (PKEMRA), as amended, (Pub. L. No. 109-295) (6 U.S.C. § 762); the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (Pub. L. No. 93-288) (42 U.S.C. §§ 5121 et seq.); the Earthquake Hazards Reduction Act of 1977, as amended (Pub. L. No. 95424) (42 U.S.C. §§ 7701 et seq.); and the National Floodlnsurance Act of 1968, as amended (Pub. L. No. 90-448) (42 U.S.C. §§ 4001 et seq.). Appropriation Authority for Program Department of Homeland Security Appropriations Act, 2016 (Pub. L. No. 114-113) Program Type New Program Overview, Objectives, and Priorities Overview The purpose of the Emergency Management Performance Grant (EMPG) Program is to provide federal funds to states to assist state, local, territorial, and tribal govermnents in preparing for all hazards, as authorized by Section 662 of the Post Katrina Emergency Management Reform Act (6 U.S.C. § 762) and the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §§ 5121 et seg.). Title VI of the Stafford Act authorizes DHS/FEMA to make grants for the purpose of providing a system of emergency preparedness for the protection of life and property in the United States from hazards and to vest responsibility for emergency preparedness jointly in the Federal Government, states, and their political subdivisions. The Federal Government, through the EMPG Program, provides necessary direction, coordination, and guidance, and provides necessary assistance, as authorized in this title, to support a comprehensive all hazards emergency preparedness system. The FY 2016 EMPG will provide federal funds to assist state, local, tribal, and territorial emergency management agencies to obtain the resources required to support the National Preparedness Goal's (the Goal's) associated mission areas and core capabilities. The EMPG program supports the Quadrennial Homeland Security Review Mission to Strengthen National Preparedness and Resilience. Objectives The EMPG Program supports a comprehensive, all -hazard emergency preparedness system by building and sustaining the core capabilities contained in the Goal. Examples of EMPG funded activities include: • Initiating or achieving whole community approach to security and emergency management; • Strengthening a state or community's emergency management program; • Updating emergency plans; • Completing the State Preparedness Reports (SPR), including the Threat and Hazard Identification and Risk Assessment (THIRA) process; Page 2 of 46 FY 2016 EMPG 55A-72 Designing and conducting exercises that engage a whole community of stakeholders and validate core capabilities; and Conducting training. Priorities The National Preparedness System is the instrument the Nation employs to build, sustain, and implement core capabilities to achieve the Goal of a secure and resilient Nation. Complex and far-reaching threats and hazards require a collaborative and a whole community approach to national preparedness that engages individuals, families, communities, private and nonprofit sectors, faith -based organizations, and all levels of government. The guidance, programs, processes, and systems that support each component of the National Preparedness System allow for the integration of preparedness efforts that build, sustain, and deliver core capabilities and achieve the desired outcomes identified in the Goal. The Department of Homeland Security expects EMPG recipients and subrecipients to prioritize grant funding to address capability targets and gaps identified through the annual THIRA and SPR process. Recipients and subrecipients should prioritize the use of grant funds to maintain/sustain current capabilities, to validate capability levels, and to increase capability for high-priority core capabilities with low capability levels. Additional information, including guidelines for completing the THIRA and SPR, can be found at: https://www.fema.aov/media-library/assets/documents/26335 and hq://www.fema.gov/state-preparedness-rem. Minimum funding amounts are not prescribed by the Department for these priorities; however, recipients are expected to support state, local, regional, tribal, territorial and national efforts to achieve the desired outcomes for these priorities. For additional details on priorities for the EMPG Program, please refer to App2ndix A — FY 2016 EMPG Program Priorities. B. Federal Award Information Award Amounts, Important Dates, and Extensions Available Funding for the EMPG: $350,100,000 Period of Performance: Twenty four months (24 months) Extensions to the period of performance are allowed. For additional information on period of performance extensions, refer to Section H of this NOFO. Projected Period of Performance Start Date(s): October 1, 2015 Projected Period of Performance End Date(s): September 30, 2017 Page 3 of 46 FY 2016 EMPG 55A-73 Funding Instrument: Grant C. Eligibility Information Eligible Applicants State governments (State Administrative Agency [SAA] or the State's Emergency Management Agency [EMA]) Eligibility Criteria All 56 states and territories, as well as the Republic of the Marshall Islands and the Federated States of Micronesia, are eligible to apply for FY 2016 EMPG Program fiords. Either the SAA or the EMA is eligible to apply directly to FEMA for EMPG Program funds on behalf of each state or territory. However, only one application will be accepted from each state or territory. Other Eligibility Criteria Emergency Management Assistance Compact (EMAC) Membership In support of the Goal, EMPG recipients must belong to, be located in, or act as temporary member states of SMAC, except for American Samoa, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Commonwealth of the Northern Mariana Islands, which are not currently required to belong to EMAC. All assets supported in part or entirely with FY 2016 EMPG Program funding must, where applicable, be readily deployable to support emergency or disaster operations per existing EMAC agreements. National Incident Management System (NIMS) Implementation Prior to allocation of any federal preparedness awards in FY 2016, recipients must ensure and maintain adoption and implementation of NIMS. Emergency management and incident response activities require carefully managed resources (personnel, teams, facilities, equipment and/or supplies) to meet incident needs. Utilization of the standardized resource management concepts such as typing, credentialing, and inventorying promote a strong national mutual aid capability needed to support delivery of core capabilities. Additional information on resource management and NIMS resource typing definitions and job titles/position qualifications is available under hltp://www.fema.g_ov/resource-management-mutual-aid. FEMA developed NIMS Guideline for Credentialing of Personnel to describe national credentialing standards and to provide written guidance regarding the use of those standards. This guideline describes credentialing and typing processes, and identifies tools which Federal Emergency Response Officials (FEROs) and emergency managers at all levels of government may use both routinely and to facilitate multijurisdictional coordinated responses. Page 4 of 46 FY 2016 EMPG 55A-74 Although state, local, tribal, and private sector partners—including nongovernmental organizations—are not required to credential their personnel in accordance with these guidelines, FEMA strongly encourages them to do so in order to leverage federal investment in the Federal Information Processing Standards (FIPS) 201 infrastructure and to facilitate interoperability for personnel deployed outside their home jurisdiction. Additional information is available from the http://www.fema.gov/nims-doctrine- suMorting-guides-tools. Cost Share or Match A cost match is required under this program. The federal share that is used towards the EMPG Program budget shall not exceed 50 percent of the total budget. The state must equally match (cash or in-kind) the federal contribution pursuant to Sections 6110) and 613 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Pub. L. No. 93-288), as amended, (42 U.S.C. §§ 5121et seq.). Unless otherwise authorized by law, federal funds cannot be matched with other federal funds. FEMA administers cost matching requirements in accordance with 2 C.F.R. § 200.306. To meet matching requirements, the recipient contributions must be verifiable, reasonable, allowable, allocable, and necessary under the grant program and must comply with all federal requirements and regulations. In accordance with 48 U.S.C. § 1469a, match requirements are waived for the insular areas: the U.S. territories of American Samoa, Guam, the U.S. Virgin Islands, the Federated States of Micronesia, the Northern Mariana Islands, and the Republic of the Marshall Islands. D. Application and Submission Information I{ey Dates and Times Date Posted to Grants.gov: Application Submission Deadline: Anticipated Award Date: February 16, 2016 March 18, 2016, 11:59:59 PM EST No later than September 30, 2016 All applications must be received by the established deadline. The Non -Disaster (ND) Grants System has a date stamp that indicates when an application is submitted. Applicants will receive an electronic message confirming receipt of the full application. In general, FEMA will not review applications that are not received by the deadline or consider them for funding. FEMA may, however, extend the application deadline on request for any applicant who can demonstrate that good cause exists to justify extending the deadline. Good cause for an extension may include technical problems outside of the applicant's control that prevent submission of the application by the deadline, or other exigent or emergency circumstances. Extensions based on exigent or emergency Page 5 of 46 FY 2016 EMPG 55A-75 circumstances will be made on case by case basis with the final determination resting with FEMA. Applicants that experience technical issues, must notify the respective EMPG Regional Program Manager before the application deadline. Other Key Dates Event Suggested Deadline For Completion Obtain DUNS Number February 19, 2016 Obtain a valid FIN February 19, 2016 Update SAM registration February 19, 2016 Start initial application in Grants.gov March 8, 2016 Complete application in ND Grants March 18, 2016 Address to Request Application Package Application forms and instructions are available at Grants.gov. To access these materials, go to htta:Ilwww.grantv.gov , select "Applicants" then "Apply for Grants," read the registration requirements and register if necessary (Allow up to 7-10 business days after submitting before the registration is active in SAM, then an additional 24 hours for Grants.gov to recognize the information). In order to obtain the application package, select "Download a Grant Application Package," enter the CFDA and/or the funding opportunity number located on the cover of this NOFO, select "Download Package," and then follow the prompts to download the application package. Applicants experiencing difficulties accessing information or which have any questions, should call the grants. go customer support hotline at (800) 518-4726. Hard copies of the NOFO are not available. In addition, the Telephone Device for the Deaf (TDD) and/or Federal Information Relay Service (FIRS) number available for this Notice is: (800) 462-7585. Applications will be processed through the Grants.gov portal and FEMA's Non -Disaster Grants (ND Grants) System. Content and Form of Application Submission Applying for an award under this program is a multi -step process and requires time to complete. To ensure that an application is submitted on time applicants are advised to start the required steps well in advance of their submission. Please review the table above under Submission Dates and Other Key Dates and Times for estimated deadlines to complete each of the six steps listed below. Failure of an applicant to comply with any of the required steps before the deadline for submitting their application may disqualify their application from funding. The steps involved in applying for an award under this program are: Page 6 of 46 FY 2016 EMPG 55A-76 1. Applying for, updating or verifying their Data Universal Numbering System (DUNS) Number; 2. Applying for, updating or verifying their Employer Identification Number (EIN) Number; 3. Updating or verifying their System for Award Management (SAM) Registration; 4. Establishing an Authorized Organizational Representative (AOR) in Grants.eov; 5. Submitting an initial application in Grants.aov; and 6. Submitting the complete application in ND Grants system. For additional information regarding the DUNS Number, EIN Number, SAM Number, and AOR requirements, please see the section below entitled Dun and Bradstreet Universal Numbering System (DUNS) Number, System for Award Management (SAM), and Authorized Organizational Representative (AOR). Unique Entity Identifier and System for Award Management (SAM) Before applying for a DHS grant at grants.gov, applicants must have a DUNS number, be registered in SAM, and be approved as an AOR. Applicants are encouraged to register early. The registration process can take four weeks or more to be completed. Therefore, registration should be done in sufficient time to ensure it does not impact the applicant's ability to meet required submission deadlines. Obtain a Dun and Bradstreet Data Universal Numbering System (DUNS) Number The DUNS number must be included in the data entry field labeled "Organizational DUNS" on the SF -424 form. Instructions for obtaining a DUNS number can be found at the following website: http://www.2rants.gov//web/grants/applicants/oraanization- registration/steel -obtain-duns-number.html. The applicant must provide a DUNS number with their application. This number is a required field for all subsequent steps in the application submission. Applicants should verify they have a DUNS number, or take the steps necessary to obtain one. Applicants can receive a DUNS number at no cost by calling the DUNS number request line at (866) 705-5711. DHS/FEMA cannot assist applicants with questions related to obtaining a current DUNS number. Obtain an Employer Identification Number (EIN) DHS/FEMA requires both the EIN and a DUNS number prior to the issuance of a financial assistance award and for grant award payment; both the EIN and a DUNS number are required to register with SAM (see below). The EIN base for an organization is the IRS Tax ID number; for individuals it is their social security number. The social security and IRS Tax ID numbers are both nine -digit numbers. Organizations and individuals submitting their applications must correctly identify the EIN from the DUNS Page 7 of 46 FY 2016 EMPG 55A-77 since both are 9 -digit numbers. If these numbers are not correctly identified in the application, a delay in the issuance of the funding award and/or incorrect payment to a recipient organization may result. Organizations applying for an EIN should plan on a minimum of two full weeks to obtain an FIN. For assistance registering an EIN please contact the IRS helpline. DHS/FEMA cannot assist applicants with questions related to obtaining a current EIN. Register with the System for Award Management (SAM) Applicants applying for grant funds electronically through Grants. go must register with the Federal System for Award Management (SAM). Step-by-step instructions for registering with SAM can be found here: htt 2://www. grants. eov/web/arants/applicants/organization-registratioWstep-2-register- with-sam.html. All applicants must register with SAM in order to apply online. Failure to register with the SAM will result in the application being rejected by Grants.gov during the submissions process. Payment under any DHS/FEMA award is contingent on the recipient's having a current SAM registration. The SAM registration process must be completed by the applicant. It is imperative that the information provided by the applicant is correct and current. Please ensure that the organization's name, address, DUNS number and EIN are up to date in SAM and that the DUNS number used in SAM is the same one used to apply for all other DHS/FEMA awards. SAM registration is a multi -step process including validating the EIN with the Internal Revenue Service (IRS) to obtain a Commercial and Government Entity (CAGE) code. The CAGE code is only valid for one year after issuance and must be current at the time of application. SAM sends notifications to the registered user via email 60, 30, and 15 days prior to expiration of the SAM registration for the Entity. SAM registration may lapse due to inactivity. To update or renew Entity records(s) in SAM, applicants will need to create a SAM User Account and link it to the migrated Entity records. For assistance registering, please go to SAM or call 866-606-8220. DHS/FEMA cannot assist applicants with questions related to registering in SAM or obtaining a current CAGE code. Authorized Organization Representative (AOR) The next step in the registration process is creating a username and password with Grants.gov to become an AOR. ADRs will need to know the DUNS number of the organization for which they will be submitting applications to complete this process. Applicants must register the individual who is able to make legally binding commitments for the applicant organization as the AOR; this step is often missed and it is crucial for valid submissions. To read more detailed instructions for creating a Page 8 of 46 FY 2016 EMPG 55A-78 profile on Grants.gov visit: http://www. rg ants.gov/web/grants/pplicants/organization- registration/step-3-username-nassword.html. AOR Authorization After creating a profile on Grants.gov, the E -Biz Point of Contact (E -Biz POC) a representative from the applicant organization who is the contact listed for SAM will receive an email to grant the AOR permission to submit applications on behalf of the organization. The E -Biz POC will then log in to Grants.gov and approve an applicant as the AOR, thereby granting permission to submit applications. To learn more about AOR Authorization visit: http://www. rg ants.gov/web/grants/applicants/organization- registration/sten-4-aor-authorization.htrnl. To track an AOR status visit: h Applicants are encouraged to register early. The registration process can take four weeks or more to be completed. Therefore, registration should be done in sufficient time to ensure it does not jeopardize required submission deadlines. Approval as an AOR is necessary in order to submit applications online. Electronic Signature Applications submitted through Grants.gov constitute a submission as electronically signed applications. When submitting the application through Grants.gov, the name of the applicant's AOR will be inserted into the signature line of the application. Applicants experiencing difficulties accessing information or who have any questions should call the crants.gov customer support hotline at (800) 518-4726 or email Grants.gov at sLipport@grants.gov. The federal awarding agency may not make a federal award to an applicant until the applicant has complied with all applicable DUNS and SAM requirements and, if an applicant has not fully complied with the requirements by the time the federal awarding agency is ready to make a federal award, the federal awarding agency may determine that the applicant is not qualified to receive a federal award and use that determination as a basis for making a federal award to another applicant. Submitting an Initial Application in Grants.gov All applicants must submit their initial application through Grants.& v. Applicants may need to first create a Grantsgoy user profile by visiting the Get Registered section of the Grants.gov website. Successful completion of this step is necessary for DHS/FEMA to determine eligibility of the applicant. Applicants should complete this initial step on-line which requires completing: • Standard Form 424 (SF -424), Application for Federal Assistance, and • Grants.gov (GG) Form Certification Regarding Lobbying Form. Page 9 of 46 FY 2016 EMPG 55A-79 Both forms are available in the Forms tab under SF -424 Family. The initial application cannot be started or submitted in Grants.gov unless the applicant's registration in SAM is confirmed. Application forms and instructions are available at Grants.gov by selecting Apply for Grants. Enter the CFDA number or the Opportunity ID Number noted in this NOFO, select Download Application package, and follow the prompts to download the application package. The information submitted in Grants.gov will be retrieved by ND Grants, which will allow DHS/FEMA to determine if an applicant is eligible. Applicants are encouraged to submit their initial application in Grants.gov at least ten days before the March 18,2016 11:59:59 PM (EDT) application deadline. For assistance applying through Grants.gov, please go to the Grant Application page, contact su port@grants.gov, or call 800-518-4726. DHSIFEMA cannot assist applicants with questions related to registering with Grants.2ov. Submitting the Complete Application in Non Disaster Grants System (ND Grants) Eligible applicants will be notified by DHS/FEMA and asked to proceed with submitting their complete application package in ND Grants. Applicants can register early with ND Grants and are encouraged to begin their ND Grants registration at the time of this announcement, Early registration will allow applicants to have adequate time to start and complete their application. In ND Grants, applicants will be prompted to submit all of the information contained in the following forms. Applicants should review these forms before applying to ensure they include all required information: • Standard Fonn 424A, Budget Information (Non -constriction); • Standard Form 424B, Standard Assurances (Non -construction); and • Standard Form LLL, Disclosure of Lobbying Activities (if the recipient has engaged or intends to engage in lobbying activities). In addition applicants must submit copies of the following in ND Grants: • Standard Form 424D, Standard Assurances (Constriction) if applying for funds to use for construction; • Standard Form 424C, Budget Information (Construction) if applying for grants to support construction; • Program Work Plan; and • Indirect Cost Rate Agreement, if applicable. The forms can be found here: littD://wivDwy.fema.gov/preparedness-non-disaster-gcants and http://www.grants.aov/web/grants/forms/sf-424-family.html#sortbv=l Intergovernmental Review An intergovernmental review may be required. Applicants must contact their State's Single Point of Contact (SPOC) to comply with the State's process under Executive Page 10 of 46 FY 2016 EMPG 55A-80 Order 12372 (see http://www.fws.gov//policy/library/r ep ol2372.pdf). Name and addresses of the SPOCs are maintained at the Office of Management and Budget's home page at http://www.whitehouse.gov/omb/ rg antsspoc to ensure currency. Funding Restrictions Federal funds made available through this award may only be used for the purpose set forth in this award and must be consistent with the statutory authority for the award. Award funds may not be used for matching funds for any other federal award, lobbying, or intervention in federal regulatory or adjudicatory proceedings. In addition, federal finds may not be used to sue the Federal Government or any other government entity. EMPG Program recipients may only find activities and projects that were included in the FY 2016 EMPG Program Work Plan that was submitted to and approved by FEMA. Activities and projects may include the sustaimnent of capabilities supported by previous EMPG Program funds provided the sustainment activity is cited in the FY 2016 Work Plan. Additionally, pursuant to Executive Order 13688, DHS/FEMA has issued IB 407 which has placed further restrictions on controlled equipment. For more information on the Controlled Equipment List and Prohibited Equipment, see Appendix B- Funding Guidelines. Environmental Planning and Historic Preservation (EHP) Compliance As a federal agency, FEMA is required to consider the effects of its actions on the environment and/or historic properties to ensure that all activities and programs funded by the agency, including grants -funded projects, comply with federal EHP regulations, laws and Executive Orders as applicable. Recipients and subrecipients proposing projects that have the potential to impact the environment, including but not limited to construction of communication towers, modification or renovation of existing buildings, structures and facilities, or new construction including replacement of facilities, must participate in the FEMA EHP review process. The EHP review process involves the submission of a detailed project description that explains the goals and objectives of the proposed project along with supporting documentation so that FEMA may determine whether the proposed project has the potential to impact environmental resources and/or historic properties. In some cases, FEMA also is required to consult with other regulatory agencies and the public in order to complete the review process. The EHP review process must be completed and approved before funds are released to carry out the proposed project. FEMA will not fund projects that are initiated without the required EHP review. Additionally, all recipients are required to comply with FEMA EHP Policy Guidance. This EHP Policy Guidance can be found in FP 108-023-1, Environmental. Planning and Historic Preservation. Policy Guidance, and FP 108.24.4, Environmental Planning and Historical Preservation Policy. Page 11 of 46 FY 2016 EMPG 55A-81 SAFECOM Recipients (including subrecipients) who receive awards under EMPG that wholly or partially provide funding for emergency communication projects and related activities must comply with the most recent version of the SAFECOM Guidance on Emergency Communications Grants. This guidance provides recommendations to recipients regarding interoperable emergency communications projects, including allowable costs, eligible activities, grants management best practices for emergency communications grants, and information on technical standards that ensure greater interoperability. The guidance is intended to ensure that federally -funded investments are compatible, interoperable, and support the national goals and objectives for improving emergency communications nationwide. Recipients (including subrecipients) investing in broadband -related investments should review IB 386 Clarification on Use of DHS/FEMA Public Safety Grant Funds for Broadband -Related Expenditures and Investments, and consult their FEMA Regional Program Analyst on such investments before developing applications. Pre -award costs Pre -award costs are allowable only with the prior written approval of FEMA and if they are included in the award agreement. To request pre -award costs a written request must be included with the application, signed by the Authorized Representative of the entity. The letter must outline what the pre -award costs are for, including a detailed budget break-out of pre -award costs from the post -award costs, and a justification for approval. Direct Costs Cost Principles Costs charged to this award must be consistent with the Cost Principles for Federal Awards located at 2 C.F.R. Part 200, Subpart E. Planning Planning related costs are allowed under this program only as described in this NOFO. Organization Organization costs are allowed under this program only as described in this NOFO. Equipment Equipment costs are allowed under this program only as described in this NOFO. Training Training related costs are allowed under this program only as described in this NOFO. Exercise Page 12 of 46 FY 2016 EMPG 55A-82 Exercise related costs are allowed tinder this program only as described in this NOFO. Travel Domestic travel costs are allowed under this program, as provided for in this NOFO. International travel is not an allowable cost under this program unless approved in advance by FEMA. Construction and Renovation Construction and renovation costs are allowed under this program only as described in this NOFO. Operational Overtime Operational Overtime costs are allowed under this program only as described in this NOFO. Maintenance and Sustainment Funding may be used for the sustainment of programs that help achieve core capabilities that, while they may not be physically deployable, support national response capabilities such as Geographic/Geospatial Information Systems (GIS), interoperable communications systems, capabilities as defined under the Response Mission Area of the Goal, and fusion centers. For additional details on the use of funds, please refer to Appendix B -FY 2016 FMPG Funding Guidelines. Management and Administration (M&A) Costs Management and Administration (M&A) activities are those directly related to managing and administering the award, such as financial management and monitoring. It should be noted that salaries of state and local emergency managers are not typically categorized as M&A, unless the state or local EMA chooses to assign personnel to specific M&A activities. M&A costs are allowable for both state and local -level EMAs. The state EMA may use up to five percent (5%) of the EMPG award for M&A purposes. In addition, local EMAs may retain and use up to five percent (5%) of the amount received from the state for local M&A purposes. If the SAA is not the state -level EMA, the SAA is not eligible to retain funds for M&A. Indirect (Facilities & Administrative [F&A]) Costs Indirect costs are allowable under this program as described in 2 C.F.R. § 200.414. With the exception of recipients who have never received a negotiated indirect cost rate as described in 2 C.F.R. § 200.414(f), recipients must have an approved indirect cost rate agreement with their cognizant federal agency to charge indirect costs to this award. A copy of the approved rate (a fully executed, agreement negotiated with the applicant's Page 13 of 46 FY 2016 EMPG 55A-83 cognizant federal agency) is required at the time of application, and must be provided to FEMA before indirect costs are charged to the award. E. Application Review Information Application Evaluation Criteria Prior to snaking a federal award, the federal awarding agency is required by 31 U.S.C. § 3321 and 41 U.S.C. § 2313 to review information available through any OMB -designated repositories of government -wide eligibility qualification or financial integrity information. Therefore, application evaluation criteria may include the following risk based considerations of the applicant: (1) financial stability; (2) quality of management systems and ability to meet management standards; (3) history of performance in managing federal awards; (4) reports and findings from audits; and (5) ability to effectively implement statutory, regulatory, or other requirements. FY 2016 EMPG Program applications will be evaluated for completeness, adherence to programmatic guidelines, and anticipated effectiveness of the proposed Work Plan. The results from the review process may require applicants to revise submissions before the release of EMPG funding. Review and Selection Process Initial Review Once program guidance and application requirements are released publicly, eligible applicants can submit applications for funding. Application release and review periods are primarily determined through the appropriations process. FEMA's Regional EMPG Program Managers conduct all pre -award reviews for Emergency Management Performance Grants. All EMPG Program Work Plans will require final approval by the appropriate FEMA regional office. Funds for recipients who have not submitted their EMPG Program Work Plan as part of their application will not be released until such Work Plan is received, reviewed, and approved by FEMA. Recipients will be notified by their FEMA Regional Program Manager should any component of the EMPG Program application require additional information. Overall Review Submitted applications will undergo a complete content review within their respective FEMA Region. Each FEMA Regional EMPG Program Manager will be responsible for reviewing FY 2016 EMPG Program Work Plans for their respective states/territories in order to assess their emergency management sustainment and enhancement efforts for building, sustaining, or delivering the core capabilities. For additional details on application review information please refer to Appendix C — FY 2016 EMPG Program Work Plan. Page 14 of 46 FY 2016 EMPG 55A-84 If the anticipated federal award amount will be greater than the simplified acquisition threshold, currently $150,000: • Prior to making a federal award with a total amount of federal share greater than the simplified acquisition threshold, DHS/FEMA is required to review and consider any information about the applicant that is in the designated integrity and performance system accessible through SAM (currently FAPIIS). • An applicant, at its option, may review information in the designated integrity and performance systems accessible through SAM and comment on any information about itself that a federal awarding agency previously entered and is currently in the designated integrity and performance system accessible through SAM. • DHS/FEMA will consider any comments by the applicant, in addition to the other information in the designated integrity and performance system, in making a judgment about the applicant's integrity, business ethics, and record of performance under federal awards when completing the review of risk posed by applicants as described in 2 CFR §200.205. F. Federal Award Administration Information Notice of Award Notification of award approval is made through the ND Grants system through an automatic e- mail to the recipient's authorized official listed in the initial application. The "award date" for EMPG awards will be the date that FEMA approves the award. The recipient should follow the directions in the notification to confirm acceptance of the award. Recipients must accept their awards no later than 90 days from the award date. The recipient shall notify FEMA of its intent to accept and proceed with work under the award, or provide a written notice of intent to decline. Instructions on accepting or decline an award in the ND Grants System, can be found in the ND Grants Grantee Training Manual. Funds will remain on hold until the applicant accepts the award through ND Grants and all other conditions of award have been satisfied, or the award is otherwise rescinded. Failure to accept the grant award within the 90 day timeframe may result in a loss of funds. Administrative and National Policy Requirements All successful applicants for all DHS grant and cooperative agreements are required to comply with DHS Standard Administrative Terms and Conditions, which are available online at: DHS Standard Terms and Conditions. The applicable DHS Standard Administrative Terms and Conditions will be those in effect at the time in which the award was made. Before accepting the award the AOR should carefully read the award package for instructions on administering the grant award and the terms and conditions associated with responsibilities under Federal Awards. The applicant must accept all conditions in this NOFO as well as any Special Terms and Conditions in the Notice of Award to receive an award tinder this program. Page 15 of 46 FY 2016 EMPG 55A-85 Pass through funding Each state shall obligate 100 percent (100%) of its total EMPG Program allocation amount to the designated state -level EMA. If the SAA is also the EMA, this requirement is automatically met. If the SAA is a separate agency, or has a separate budget processes, then EMPG funds must be obligated to the EMA within 15 days of the grant award date. In instances where the state EMA is making sub -awards to local jurisdictions, FEMA expects the state EMA to make these awards as expeditiously as possible. Reporting Recipients are required to submit various financial and programmatic reports as a condition of their award acceptance. Future awards and fund drawdowns may be withheld if these reports are delinquent. Federal Financial Reporting Requirements (FFR) Federal Financial Report (FFR) Recipients must report obligations and expenditures on a quarterly basis through the FFR (SF -425) to FEMA. Recipients must file the FFR electronically using the Payment and Reporting Systems (PARS). An FFR must be submitted quarterly throughout the period of performance, including partial calendar quarters, as well as for periods where no grant award activity occurs. The final FFR is due 90 days after the end date of the performance period. Future awards and fund drawdowns may be withheld if these reports are delinquent, demonstrate lack of progress, or are insufficient in detail. The Federal Financial Reporting Form (FFR) is available online at: htip://www whitehouse gov/sites/default/files/omb/arants/ap-roved forms/SF-425.ndf, SF -425 OMB 900348-0061. Financial Reporting Periods and Due Dates The following reporting periods and due dates apply for the FFR: Reporting Period Report Due Date October I — December 31 January 30 Januar 1 — March 31 April 30 April 1— June 30 July 30 Jul 1— September 30 October 30 Financial and Compliance Audit Report For audits of fiscal years beginning on or after December 26, 2014, recipients that expend $750,000 or more from all federal funding sources during the fiscal year are required to submit an organization -wide financial and compliance audit report. The audit must be performed in accordance with the requirements of U.S. Government Accountability Office's (GAO) Government Auditing Standards, located at http://www.gao.gov/ og vaud/ybkOl.htm, and the requirements of Subpart F of 2 C.P.R. Part 200, located at http://www.e frgov/egi-bin/text-idx?node=sp2 1.200.f. Page 16 of 46 FY 2016 EMPG 55A-86 For audits of fiscal years beginning prior to December 26, 2014, recipients that expend $500,000 or more from all federal funding sources during their fiscal year are required to submit an organization-wide financial and compliance audit report. The audit must be performed in accordance with GAO's Government Auditing Standards, located at http://www.gao.gov/govaud/ybkOl.htm, and OMB Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations, located at http://www.whitehouse.gov/omb/circulars/al33 compliance supplement 2012. Program Performance Reporting Requirements Performance Progress Reports (SF -PPR) Recipients are responsible for providing updated performance reports to FEMA using the SF -PPR on a quarterly basis. The Quarterly Performance Progress Reports must be based on the approved EMPG Program Work Plan and are due no later than 30 days after the end of the quarter (i.e., on January 30, April 30, July 30, and October 30). Recipients must complete the cover page of the SF -PPR (OMB Control Number: 0970-0334) and submit it as an attachment to the ND Grants system. Recipients are required to report quarterly on progress towards completing activities and projects approved in their EMPG Program Work Plans, how expenditures support maintenance and sustainment of core capabilities, and progress made towards implementing the National Preparedness System. This includes reporting on the following information: • List of completed training courses and exercises and the Training and Exercise Data Table (templates are available in Ap ep radix C — FY 2016 EMPG Program Work Plan). • Percent completion of the Training and Exercise Plan (TEP) outlined in the FY 2016 EMPG Program Work Plan (templates are available in Appendix C — FY 2016 EMPG Program Work Plan). Programmatic Reporting Periods and Due Dates The following reporting periods and due dates apply for the PPR: Reporting Period Report Due Date October 1 — December 31 Janua 3ry 0 _ Janua 1— March 31 Aril 30 April 1— June 30 July 30 July 1— September 30 October 30 Standardized Reporting through the EMPG Program Work Plan Template The EMPG Program Work Plan Template has been modified to standardize data collection for improved analysis and reporting. The EMPG Program Work Plan includes five components: (1) Program and Budget Narrative, (2) Personnel Data Table, (3) Training Data Table, (4) Exercise Data Table, and (5) Grant Activities Outline. ,Baseline data on Personnel, Training, and Exercise as well as the Grant Activities Outline must be Page 17 of 46 FY 2016 EMPG 55A-87 provided in the EMPG Program Work Plan at the time of application and will form the basis of the Quarterly Performance Progress Report (SF -PPR) submissions. The Grant Activities Outline is structured to enable reporting of quarterly activities according to Emergency Management Function (EMF) projects, as well as standardized reporting of activity completion status. The EMPG Program Work Plan must suminarize program activities in the following areas: • Planning: Planning efforts should span all five Goal mission areas. The EMPG Program Work Plan should provide a baseline for determining potential threats and hazards, required capabilities, required resources, and establish a framework for roles and responsibilities. Planning efforts should demonstrate the engagement of the whole community in the development of a strategic, operational, and/or community-based approach to preparedness. • Organization: EMPG Program funds may be used for all -hazards emergency management operations, staffing, and other day-to-day activities in support of emergency management, including hazard mitigation staffing of the State Hazard Mitigation Officer (SHMO) position, and staffing Community Emergency Response Team (CERT) and Citizen Corps positions at the state and local levels in order to promote whole community engagement in all phases of emergency management and across the mission areas. • Equipment: Allowable equipment categories for the EMPG Program are listed on the web -based version of the Authorized Equipment List (AEL) available at https://www.fema.gov/authorized-equipment-list. Unless otherwise stated, equipment must meet all mandatory regulatory and/or FEMA -adopted standards to be eligible for purchase using these funds. In addition, agencies will be responsible for obtaining and maintaining all necessary certifications and licenses for the requested equipment. • Training: EMPG Program funds may be used for a range of emergency management -related training activities to enhance the capabilities of State and local emergency management personnel through the establishment, support, conduct, and attendance of training. Training activities should align to a current, Multi -Year TEP developed through an annual Training and Exercise Plan Workshop (TEPW). • Exercises: Exercises conducted with grant funds should test and evaluate performance towards meeting capability targets, established through the development of a jurisdiction's THIRA for the core capabilities needed to address their greatest risks. Exercise priorities should align to a current, Multi - Year TEP developed through an annual TEPW. For more details on the EMPG Program Work Plan, please refer to Appendix C -FY 2016. EMPG Program Work Plan. Threat and Hazard Identification and Risk Assessment (THIRA) Page 18 of 46 FY 2016 EMPG 55A-88 States and territories should review and, if necessary, revise and update the THIRA by December 31 on an annual basis. Further details on the THIRA as it relates to EMPG Program requirements can be found in Appendix A — FY 2016 EMPG Program Priorities. For additional guidance on THIRA, please refer to Comprehensive Preparedness Guide (CPG) 201, Second Edition, available at https://www.fema.gov/threat-and-hazard- identification-and-risk-assessment. State Preparedness Report (SPR) Section 652(c) of the Post -Katrina Emergency Management Reform Act of 2006 (Pub. L. No. 109-295), 6 U.S.C. §752(c), requires any state that receives federal preparedness assistance to submit an SPR (OMB Control Number: 1660-0131) to FEMA. States submitted their most recent SPRs by December 31 annually, thus satisfying this requirement to receive funding under the FY 2016 EMPG Program. Emergency Operations Plan (EOP) Recipients must update their EOP at least once every two years to comply with Comprehensive Preparedness Guide (CPG) 101 v.2, Developing and Maintaining Emergency Operations Plans. Recipients will use the SPR to communicate their compliance with this reporting requirement. Biannual Strategy Implementation Reports (BSIR) In addition to the Quarterly Performance Progress Reports, recipients are responsible for completing and submitting BSIR reports. The BSIR is due within 30 days of the end of the reporting period (July 30 for the reporting period of January 1 through June 30 (the summer BSIR); and January 30 for the reporting period of July 1 through December 31 (the winter BSIR). Updated obligations and expenditure information must be provided within the BSIR to show progress made toward meeting strategic goals and objectives as well as how expenditures support Planning, Organization, Equipment, Training and Exercise (POETS) activities. Accordingly, expenditures should support gaps identified in the recipient's THIRA and SPRs. FY 2016 Unified Reporting Tool (URT) The URT is FEMA's collection mechanism for THIRA/SPR and other related preparedness information. The FY 2016 SPR includes questions related to NIMS adoption and implementation, and CPG 101 v 2.0 compliance. Information on the URT, to include when recipients will receive the tool and how to use the tool, will be sent to recipients in summer 2016. Closeout Reporting Requirements FEMA will close out the grant award when it determines that all applicable administrative actions and all required work of the EMPG Program award have been completed by the recipient. This section summarizes the actions that the recipient must take to complete the closeout process in accordance with 2 C.F.R. § 200.343 at the end of the grant's period of performance or the expiration of an approved extension via Grant Adjustment Notice (GAN) issued to close out the grant. Page 1.9 of 46 FY 2016.EMPG 55A-89 Within 90 days of the end of the period of performance, or after expiration of a close out extension via GAN, recipients must submit a final FPR and final performance progress report detailing all accomplishments and a qualitative summary of the impact of those accomplishments throughout the period of performance, as well as all the following documentation: 1) Final request for payment, if applicable; 2) SF -425 —Final Federal Financial Report; 3) SF -PPR — Final Performance Progress Report to include final Activity Outline Report from Work Plan; 4) A qualitative summary of the impact of accomplishments throughout the entire period of performance. The summary is submitted to the respective Regional Program Manager in a Word document; 5) SF -428 — Tangible Personal Property Report — Inventory of all tangible personal property acquired using funds from this award; and 6) Other documents required by program guidance or terms and conditions of the award. If applicable, an inventory of all construction projects that used funds from this program has to be reported using the Real Property Status Report (SF -429) available at htlp://www.whitchouse.gov/sites/default/files/omb/grants/a roved forms/0-429.ndf. Additionally, the recipient must liquidate all obligations incurred under the EMPG Program award no later than 90 calendar days after the end date of the period of performance or expiration of a GAN that closes out the award, whichever comes first. If a recipient fails to liquidate their obligations within this time period, FEMA may disallow the costs associated with those unliquidated obligations. Recipients also are responsible for promptly returning to FEMA the balance of any funds that have been drawn down, but remain unliquidated. After final reports have been reviewed and approved by FEMA, a close-out notice will be completed to close out the grant. The notice will indicate the period of performance as closed, list any remaining funds the recipient has not drawn down that will be deobligated, and address requirements for record retention, and disposition and reporting requirements for any equipment or real property purchased using EMPG grant funding. In addition, any EMPG recipient that issues subgrants to any subrecipients is responsible for closing out those subgrants as described in 2 C.F.R. § 200.343. EMPG recipients must ensure that they complete the closeout of their subgrants in time to submit all necessary documentation and information to FEMA during the closeout of their own grant award. G. DHS Awardin¢ Agenev Contact Information Page 20 of 46 FY 2016 EMPG 55A-90 Contact and Resource Information Centralized Services and Information Desk (CSID) The Centralized Services Information Desk (CSID) is a non -emergency comprehensive management and information resource developed by DHS/FEMA for grants stakeholders. CSID provides general information on all FEMA grant programs and maintains a comprehensive database containing key personnel contact information at the federal, state, and local levels. When necessary, recipients will be directed to a federal point of contact who can answer specific programmatic questions or concerns. CSID can be reached by phone at (800) 368-6498 or by e-mail at ASKCsid@fema.gov, Monday through Friday, 9:00 a.m. — 5:00 p.m. EST. GPD Grant Operations Division GPD's Grant Operations Division Business Office provides support regarding financial matters and budgetary technical assistance. Additional guidance and information can be obtained by contacting the FEMA Call Center at (866) 927-5646 or via e-mail to ASK- GMDAdhs.gov. FEMA Regional Offices FEMA Regional offices manage, administer, and conduct the application budget review, create the award package, approve, amend, and close out awards, as well as conduct cash analysis, financial and programmatic monitoring, and audit resolution for the EMPG Program. The Regions also provide technical assistance to EMPG Program awardees. FEMA Regional Office contact information is available here. Systems Information Grants.gov. For technical assistance with Grants.gov, please call the Grants.gov customer support hotline at (800) 518-4726. Non Disaster (ND) Grants. For technical assistance with the ND Grants system, please contact nd rg ants@fema.gov or (800) 865-4076. GPD Environmental Planning and Historic Preservation (GPD EHP) The FEMA GPD EHP Team provides guidance and information about the EHP review process to recipients and subrecipients. All inquiries and communications about GPD projects or the EHP review process, including the submittal of EHP review materials, should be sent to gpdeh l�nfo fema.gov. EHP Technical Assistance, including the EHP Screening Form, can be found at htip://www.femagov/media-library-data/20130726 - 1806-25045-2839/gpdd ehp screening form omb 1660 0115 June 2011.pdf. H. Additional Information National Preparedness DHS coordinates with local, state, territorial, and tribal governments as well as with other federal agencies and private and nonprofit organizations to facilitate a whole conununity, risk driven, and capabilities -based approach to preparedness. This approach is grounded in the identification Page 21 of 46 FY 2016 EMPG 55A-91 and assessment of risk through the THIRA. States must maintain and update their THIRAs and their SPRs annually to ensure that the community's shared understanding of risk evolves to account for changes in the risk landscape, including successful mitigation efforts, emerging threats, hazards, and associated consequences. Information on the National Preparedness System can be found in the http://www fema.gov/nationa_l-preparedness-s spm, which is posted on the FEMA website. Additional details regarding the National Preparedness System and how it is supported by the EMPG Program can be found in Appendix A — FY 2016 EMPG Program Priorities. Payments DHS/FEMA utilizes the DHS/FEMA Payment and Reporting System (PARS)for financial reporting, invoicing and tracking payments. Monitoring EMPG recipients will be monitored programmatically and financially biannually and as needed by FEMA staff to ensure that the activities and project goals, objectives, performance requirements, timelines, milestone completion, budgets, and other related program criteria are being met. Monitoring may be accomplished through either a desk -based review or on-site monitoring visits, or both. Monitoring will involve the review and analysis of the financial, programmatic, performance, compliance and administrative processes, policies, activities, and other attributes of each federal assistance award and will 'identify areas where technical assistance, corrective actions and other support that may needed. Conflict of Interest To eliminate and reduce the impact of conflicts of interest in the subaward process, recipients and pass-through entities must follow their own policies and procedures regarding the elimination or reduction of conflicts of interest when making subawards. Recipients and pass- through entities also are required to follow any applicable state, local, or tribal statutes or regulations governing conflicts of interest in the malting of subawards. The recipient or pass-through entity must disclose to FEMA, in writing, any real or potential conflict of interest as defined by the federal, state, local, or tribal statutes or regulations or their own existing policies that may arise during the administration of the federal award. Recipients and pass-through entities must disclose any real or potential conflicts to their Regional EMPG Program Manager within five days of learning of the conflict of interest. Similarly, subrecipients must disclose any real or potential conflict of interest to the pass-through entity as required by the Recipient's conflict of interest policies, or any applicable state, local, or tribal statutes or regulations. Conflicts of interest may arise during the process of FEMA making a federal award in situations where an employee, officer, or agent, any members of his or her immediate family, or his or her partner has a close personal relationship, a business relationship, or a professional relationship, with an applicant, subapplicant, recipient, subrecipient, or FEMA employee. Page 22 of 46 FY 2016 EMPG 55A-92 Extensions Extensions to this program are allowed. Extensions to the initial period of performance identified in the award will only be considered through formal, written requests to the recipient's respective Regional EMPG Program Analyst and must contain specific and compelling justifications as to why an extension is required. EMPG recipients are advised to coordinate with the Regional EMPG Program Analyst, as needed, when preparing an extension request. All extension requests must address the following: 1) Grant Program, Fiscal Year, and award number; 2) Reason for delay — this must include details of the legal, policy, or operational challenges being experienced that prevent the final outlay of awarded funds by the applicable deadline; 3) Current status of the activity/activities; 4) Approved period of performance termination date and new project completion date; 5) Amount of finds drawn down to date; 6) Remaining available finds, both federal and non-federal; 7) Budget outlining how remaining federal and non-federal f nds will be expended; 8) Plan for completion, including milestones and timeframes for achieving each milestone and the position/person responsible for implementing the plan for completion; and 9) Certification that the activity/activities will be completed within the extended period of performance without any modification to the original Statement of Work, as described in the investment justification and approved by DHS/FEMA. Extension requests will be granted only due to compelling legal, policy, or operational challenges. Extension requests will only be considered for the following reasons: • Contractual commitments by the grant recipient with vendors or sub -recipients prevent completion of the project within the existing Period of Performance; • The project must undergo a complex environmental review that cannot be completed within existing Period of Performance; • Projects are long-term by design and therefore acceleration would compromise core programmatic goals; and • Where other special circumstances exist. Recipients must submit all proposed extension requests to DHS/FEMA for review and approval no later than 120 days prior to the end of the period of performance. In accordance with GPD policy, extensions are typically granted for no more than a six month time period. Page 23 of 46 FY 2016 EMPG 55A-93 FY 2016 EMPG Allocations Emergency Management Performance Grant (EMPG) awards are based on Section 662 of the Post -Katrina Emergency Management Reform Act of 2006, as amended, (6 U. S.C. § 762). All 50 states, the District of Columbia, and Puerto Rico receive a base amount of 0.75 percent of the total available funding appropriated for the EMPG program. Four territories (American Samoa, Guam, Northern Mariana Islands, and the U.S. Virgin Islands) receive a base amount of 0.25 percent of the total available funding appropriated for the EMPG program. The balance of the funds appropriated for the EMPG Program fiords are distributed on a population -share basis. Pursuant to Article X of the Federal Programs and Services Agreement of the Compact of Free Association Act (Pub. L. No. 108-188), a set amount of funds ($100,000 total) are also available from the Disaster Relief Fund for the Federated States of Micronesia and for the Republic of the Marshall Islands. FY20116 EmergencyManagement State/Territory Allocation Alabama $5,762,090 State/Territory New Hampshire Allocation $3,484,077 Alaska $3,101,752 New Jersey $8,408,538 Arizona $7,033,385 New Mexico $3,971,203 Arkansas $4,547,810 New York $15,405,703 California $27,897,964 North Carolina $9,108,907 Colorado $6,147,913 North Dakota $3,113,693 Connecticut $4,943,374 Ohio $10,122,943 Delaware $3,235,721 Oklahoma $5,150,267 District of Columbia $3,059,009 Oregon $5,226,218 Florida $15,712,687 Pennsylvania $10,890,646 $9,219,993 Rhode Island $3,306,975 -Georgia Hawaii $3,549,282 South Carolina $5,786,086 Idaho $3,693,468 South Dakota $3,179,251 Illinois $10,927,764 Tennessee $6,886,333 Indiana $6,898,846 Texas $20,359,810 Iowa $4,641,875 Utah $4,559,247 Kansas $4,504,835 Vermont $3,029,190 $5,481,960 Virginia $8,037,289 -Kentucky Louisiana $5,640,547 Washington $7,254,374 Maine $3,483,250 West Virginia $3,815,619 $6,502,897 Wisconsin $6,351,133 -Maryland Massachusetts $7,011,664 Wyoming $3,003,407 Michigan $9,031,286 Puerto Rico $4,868,027 Minnesota $6,169,232 U.S. Virgin Islands $941,870 $4,556,932 American Samoa $910,085 -Mississippi Missouri $6,552,785 Guam $979,453 Montana $3,291,900 Northern Mariana Islands $908,795 Nebraska $3,849,232 Republic of the Marshall Islands $50,000 Nevada Total $4,491,408 Federated States of Micronesia $50,000 $350;100,000 Page 24 of 46 FY 2016 EMPG 55A-94 Appendix A - FY 2016 EMPG Program Priorities Alignment of the EMPG Program to the National Preparedness System The Nation utilizes the National Preparedness System to build, sustain, and deliver core capabilities in order to achieve the National Preparedness Goal (the Goal) of "a secure and resilient Nation with the capabilities required across the whole community to prevent, protect against, mitigate, respond to, and recover from the threats and hazards that pose the greatest risk." The objective of the National Preparedness System is to facilitate an integrated, whole community, risk informed, capabilities -based approach to preparedness. The guidance, programs, processes, and systems that support each component of the National Preparedness System enable a collaborative, whole community approach to national preparedness that engages individuals, families, communities, private and nonprofit sectors, faith -based organizations, and all levels of government (http://www.fema.aov/whole-community). The FY 2016 EMPG Program contributes to the implementation of the National Preparedness System by supporting the building, sustainment, and delivery of core capabilities. Core capabilities are essential for the execution of critical tasks for each of the five mission areas outlined in the Goal. Delivering core capabilities requires the combined effort of the whole community, rather than the exclusive effort of any single organization or level of government. The EMPG Program's allowable costs support efforts to build and sustain core capabilities across the Prevention, Protection, Mitigation, Response, and Recovery mission areas described in the Goal. Emphasis is placed on capabilities that address the greatest risks to the security and resilience of the United States, and the greatest risks along the Nation's borders. When applicable, funding should support deployable assets that can be utilized anywhere in the Nation through automatic assistance and mutual aid agreements, including but not limited to the Emergency Management Assistance Compact (EMAC). The FY 2016 EMPG Program supports investments that improve the ability of jurisdictions nationwide to: • Prevent a threatened or an actual act of terrorism; • Protect our citizens, residents, visitors, and assets against the greatest threats and hazards; • Mitigate the loss of life and property by lessening the impact of fixture disasters; • Respond quickly to save lives, protect property and the environment, and meet basic human needs in the aftermath of a catastrophic incident; and/or • Recover through a focus on the timely restoration, strengthening, and revitalization of infrastructure, housing, and a sustainable economy, as well as the health, social, cultural, historic, and environmental fabric of communities affected by a catastrophic incident. The core capabilities contained in the Goal are highly interdependent and require the use of existing preparedness networks and activities, to improved training and exercise programs, innovation, and appropriate administrative, finance, and logistics systems. Page 25 of 46 Appendix A - FY 2016 EMPG Program. Priorities 55A-95 Recipients will use the components of the National Preparedness System to support building, sustaining, and delivering these core capabilities. The components of the National Preparedness System are: Identifying and Assessing Risk; Estimating Capability Requirements; Building and Sustaining Capabilities; Planning to Deliver Capabilities; Validating Capabilities; and Reviewing and Updating. Additional information on the National Preparedness System is available at httl2://www.fema.gov/national-preparedness-syst . Reporting on the Implementation of the National Preparedness System Identifying and Assessing Risk and Estimating Capability Requirements In order to qualify for EMPG Program funding, all recipients shall develop and maintain a THIRA, which informs and supports an annual SPR. A THIRA provides a comprehensive approach for identifying and assessing risks and associated impacts. It expands on existing local, tribal, territorial, and state Hazard Identification and Risk Assessments (HIRAs) and other risk methodologies by broadening the factors considered in the process, incorporating the whole community throughout the entire process, and by accounting for important community -specific characteristics. A guide on how to complete a THIRA is available at httns://www.fema. aov/threat-and-hazard-identification-and-risk-assessment. In Step Four of the THIRA process, a jurisdiction should estimate the resources required to deliver the capability targets established in their THIRAs. Communities express resource requirements as a list of resources needed to successfully manage their threats and hazards. Through the capability estimation process, jurisdictions should identify the resources from across the whole community needed to meet capability targets. Each jurisdiction should decide which combination of resources is most appropriate to achieve its capability targets. The SPR is an annual self-assessment of state preparedness submitted by the 56 states and territories to the FEMA. The Post -Katrina Emergency Management Reform Act of 2006 (PKEMRA) requires an SPR from any state or territory receiving Federal preparedness assistance administered by the Department of Homeland Security. Reporting: • States are required to submit an annual update to their THIRA. For FY 2016, EMPG recipients should complete THIRA, Step 4 for all Response and Recovery core capabilities, including the common core capabilities for those mission areas. States will submit their THIRA update along with their SPR through the URT and email a copy of the URT to their respective FEMA Regional Federal Preparedness Coordinator and copy fema-sprna,fema.dhs.gov. THIRA submissions shall be in alignment with CPG 201, Second Edition. State submissions of the THIRA and SPR are due no later than December 31 annually. Building and Sustaining Core Capabilities EMPG Program recipients should ensure that grant funding is utilized to sustain critical core capabilities within the National Preparedness System that were funded by past EMPG Program funding cycles. New capabilities should not be built at the expense of maintaining current and critically needed core capabilities. If new capabilities are being built utilizing EMPG Program Page 26 of 46 Appendix A - FY 2016 EMPG Program Priorities 55A-96 funding, recipients must ensure that the capabilities are deployable outside of their community, where applicable, to support regional and national efforts or otherwise shareable with regional partners and aligned with a capability target identified in the THIRA or a capability gap identified through the SPR. Reporting: • Recipients will be required to: (1) describe how expenditures support maintenance and sustainment of current Goal core capabilities, and (2) describe how expenditures support filling capability target gaps identified in the THIRA or the SPR and report these within the quarterly performance progress reports. NIMS Implementation Recipients receiving EMPG funding are required to implement NIMS, and EMPG fiends may be used to meet the requirements described below. NIMS uses a systematic approach to integrate the best existing processes and methods into a unified national framework for incident management. Incident management refers to how incidents are managed across all homeland security activities, including prevention, protection, and response, mitigation, and recovery. FY 2016 EMPG recipients must use standardized resource management concepts for resource typing, credentialing, and an inventory to facilitate the effective identification, dispatch, deployment, tracking, and recovery of resources. Reporting • Recipients report on NIMS implementation through the SPR. Planning to Deliver Capabilities All EMPG Program recipients shall maintain, or revise as necessary, jurisdiction -wide, all threats and hazards EOPs consistent with the CPG 101 v2, which serves as the foundation for state, local, tribal, and territory emergency planning. CPG 101 Q can be found at https://www.fema.gov/media-librar3/assets/documents/25975. Recipients must update their EOP at least once every two years. In building future EOPs, planners should anticipate the increasing complexity and decreasing predictability of the future operating environment. These efforts should actively use strategic foresight, including the multiple driving forces of change and the associated evolving strategic needs shown in FEMA's Crisis Response and Disaster Resilience 2030 Report. The Report can be found at httn://www.fema.gov/strategic-planning-analysis-spa-division/strate icgforesight- initiative. Reporting • Recipients will report HOP compliance with CPG 101 v2 in the SPR. Validating Capabilities Recipients should develop long-term training and exercise priorities that examine, validate and/or address capability targets identified through their annual THIRA and or capability gaps identified through their annual SPR. Recipients should also review and consider areas for improvement identified from real-world events and exercises, and national areas for Page 27 of 46 Appendix A - FY 2016 EMPG Program Priorities 55A-97 improvement identified in the most recent National Preparedness Report when developing exercise priorities. The Multi-year Training and Exercise Plan (TEP) should consider the risks and capability requirements described in the THIRA along with the guidance provided by elected and appointed officials to identify and set training and exercise program priorities and develop a multi-year schedule of exercise events and supporting training activities to meet those priorities. A TEP that is developed from a Training and Exercise Planning Workshop (TEPW) provides a roadmap to accomplish the multi-year priorities identified by elected and appointed officials and whole community stakeholders. These priorities help curriculum and exercise planners design and develop a progressive program of training and exercises that build, sustain, and increase the ability to deliver core capabilities. Information related to TEPs and TEPWs can be found on the Homeland Security Exercise and Evaluation Program (HSEEP) website at hgps://www.fema.gov/exercise. In addition to training activities aligned to and addressed in the TEP, all EMPG Program funded personnel shall complete the following training requirements and record proof of completion: NIMS Training, Independent Study (IS) 100, IS 200, IS 700, and IS 800. In addition, personnel shall complete either the Independent Study courses identified in the Professional Development Series or the National Emergency Management Basic Academy delivered either by the Emergency Management Institute (EMI) or at a sponsored State, local, tribal, territorial, regional or other, designated location. Further information on the National Emergency Management Basic Academy and the Emergency Management Professional Program can be found at: https://training.fema. og v/empp/. Previous versions of the IS courses meet the NIMS training requirement. A complete list of Independent Study Program Courses may be found at http://train g.fema.g2ydq. A list of the Professional Development Series courses can be found in Appendix B. All recipients will develop and maintain a progressive exercise program, consistent to the degree practical, HSEEP in support of the National Exercise Program (NEP). The NEP is critical to our Nation's ability to test and validate core capabilities. Grant recipients are highly encouraged to nominate exercises into the NEP. For additional information on the NEP, please refer to htt :/p /www.feina.gov/national-exercise-program. Recipients shall conduct no less than four quarterly exercises (i.e., one EMPG-funded exercise and/or an exercise that includes EMPG-funded personnel per quarter) of any type (i.e., discussion -based or operations -based) and one full-scale exercise within a 12 -month period. The five exercises shall be linked to common program priorities and reflect a series of increasingly complex exercises with each building upon the previous one while incorporating prior lessons learned. All EMPG-funded personnel shall participate in no fewer than three exercises in a 12 - month period. A progressive, multi-year exercise program enables organizations to participate in a series of increasingly complex exercises, with each successive exercise building upon the previous one while also taking into account prior lessons learned. Regardless of the exercise type, each Page 28 of 46 Appendix A - FY 2016 EMPG Program Priorities 55A-98 exercise within the progressive series is linked to a set of common program priorities and designed to test associated capabilities. Reporting: • Recipients are required to develop a multi-year TEP that identifies a combination of exercises and associated training requirements that address priorities identified in the TEPW. The TEP shall be submitted to hseepna,fema.dhs.gov 90 days after the completion of the TEPW. States are encouraged to post their training and exercise schedules to the National Exercise Scheduling System (NEXS) at haus://www.fema.gov/exercise. • Recipients should provide a list of completed training courses and exercises and the Training and Exercise Data Table to be included in the Quarterly Performance Progress Report. • Recipients must include the percent completion of the TEP outlined in the FY 2016 EMPG Program Work Plan to be included in the Quarterly Performance Progress Report. • In order to report on the required exercises, recipients can either submit one After Action Report/Improvement Plan (AAR/IP) for the culminating full-scale exercise from all 5 exercises conducted within a 12 -month period; or individual AAR/IPs for each of the 5 exercises to hseepAfema.dhs.gov, and the appropriate Regional EMPG Program Manager no later than 90 days after completion of the exercise. In accordance with HSEEP guidance recipients are reminded of the importance of implementing corrective actions iteratively throughout the progressive exercise cycle. Recipients are encouraged to use the HSEEP AAR/IP template located at https://www.feina.ggv/exercise and utilize the Corrective Action Program (CAP) System at hgps:Hhseep.dhs.gov/cans/, as a means to track the implementation of corrective actions listed in the AAR/IP. If a state/territory/local jurisdiction has experienced a major disaster, and would like to request exemptions for a scheduled exercise, the recipient should send this request to its assigned FEMA Regional EMPG Program Manager through the Quarterly Performance Progress Report. Exemptions will be reviewed on a case-by-case basis by the Regional EMPG Program Manager. Reviewing and Updating On a recurring basis, capability levels, resources, and plans should be reviewed to determine if they remain relevant or need to be updated. This review should be based on a current risk assessment and utilize information gathered during the capability validation process. These reviews will provide a means to determine priorities, direct preparedness actions, and calibrate goals and objectives. Additional considerations Strengthening Governance Integration DHS/FEMA preparedness grant programs are intended to support the core capabilities across the five mission areas of Prevention, Protection, Mitigation, Response, and Recovery that are necessary to prepare for incidents that pose the greatest risk to the Nation's security. Each Page 29 of 46 Appendix A - FY 2016 EMPG Program Priorities 55A-99 program reflects the Department's intent to build and sustain an integrated network of national capabilities across all levels of government and the whole community. Disparate governance structures must be integrated and refined to ensure resources are targeted to support the most critical needs of a community based on risk driven, capabilities -based planning. Strong and inclusive governance systems better ensure that disparate funding streams are coordinated and applied for maximum impact. DHS/FEMA requires that all governance processes that guide the allocation of preparedness grant funds adhere to the following guiding principles: • Coordination oflnvestments — resources must be allocated to address the most critical capability needs as identified in their SPR and coordinated among affected preparedness stakeholders. • Transparency — stakeholders must be provided visibility on how preparedness grant funds are allocated and distributed, and for what purpose. • Substantive Local Involvement — the tools and processes that are used to inform the critical priorities, which DHS/FEMA grants support must include local government representatives. At the state and regional levels, local risk assessments must be included in the overarching analysis to ensure that all threats and hazards are accounted for. • Flexibility with Accountability — recognition of unique preparedness gaps at the local level, as well as maintaining and sustaining existing capabilities. • Support of Regional Coordination. — recognition of inter/intra-state partnerships and dependencies at the state and regional levels, and within metropolitan areas. Page 30 of 46 Appendix A - FY 2016 EMPG Program Priorities 55A-100 Appendix B — FY 2016 EMPG Funding Guidelines Allowable Costs Management and Administration (M&A) M&A activities are those defined as directly relating to the management and administration of EMPG Program funds, such as financial management and monitoring. It should be noted that salaries of state and local emergency managers are not typically categorized as M&A, rmless the state or local EMA chooses to assign personnel to specific M&A activities. If the SAA is not the EMA, the SAA is not eligible to retain funds for M&A. M&A costs are allowable for both state and local -level EMAs. The state EMA may use up to five percent (5%) of the EMPG award for M&A purposes. In addition, local EMAs may retain and use up to five percent (5%) of the amount received from the state for local M&A purposes. Indirect Costs Indirect costs are allowable imder this program as described in 2 C.F.R. § 200.414. With the exception of recipients who have never received a negotiated indirect cost rate as described in 2 C.F.R. § 200.414(f), recipients must have an approved indirect cost rate agreement with their cognizant federal agency to charge indirect costs to this award. A copy of the approved rate (a fully executed, agreement negotiated with the applicant's cognizant federal agency) is required at the time of application, and must be provided to FEMA before indirect costs are charged to the award. Planning Planning spans all five National Preparedness Goal (the Goal) mission areas and provides a baseline for determining potential threats and hazards, required capabilities, required resources, and establishes a framework for roles and responsibilities. Planning provides a methodical way to engage the whole community in the development of a strategic, operational, and/or community-based approach to preparedness. EMPG Program funds may be used to develop or enhance emergency management planning activities. Some examples include: • Development of THIRA and SPR • Development of an all -hazards mitigation plan based on identified risks and hazards Emergency Management/Operation Plans • Maintaining a current EOP that is aligned with guidelines set out in CPG 101v.2 https://www.fema.gov/media-library/assets/docurnents/25975 • Modifying existing incident management and emergency operations plans • Developing/enhancing large-scale and catastrophic event incident plans Communications Plans Developing and updating Statewide Communication Interoperability Plans Developing and updating Tactical Interoperability Communications Plans Page 31 of 46 Appendix A — FY 2016 THSGP Priorities 55A-101 Continuity/Administrative Plans • Developing/enhancing Continuity of Operation (COOP)/Continuity of Government (COG) plans • Developing/enhancing financial and administrative procedures for use before, during, and after disaster events in support of a comprehensive emergency management program Whole Community Engagement/Planning • Developing/enhancing emergency operations plans to integrate citizen/volunteer and other non-governmental organization resources and participation • Engaging the whole community in public education and awareness activities such as America's PrepareAthon!—The America's PrepareAthon! website, ready.gov/prepare, includes customizable promotional materials and easy-to-use resources) • Planning to foster public-private sector partnerships, including innovation for disasters initiatives that support the mission areas identified in the Goal • Executing an America's PrepareAthon! activity to engage the whole community in a hazard -specific activity on the National Day of Action • Establishing a Citizen Corps Whole Community Council that brings together representatives of the whole community to provide input on emergency operations plans, risk assessments, mitigation plans, alert and warning systems, and other plans; assist in outreach and education of community members in preparedness activities; and build volunteer capability to support disaster response and recovery • Delivering the CERT Basic Training Course and supplemental training for CERT members who have completed the basic training, the CERT Train. -the -Trainer Course, and the CERT Program Manager course (strongly encouraged) • Developing or enhancing mutual aid agreements/compacts, including required membership in EMAC + Information on Citizen Corps Whole Community Councils and CERT programs can be found at: b–q://www.ready.aov/citizen-corps for Citizen Corps Whole Community Councils and at htt 2://www.fema.gov/cominuniiy-emereenev-rest)onse-tearns for CERT Programs. • Other preparedness activities include Youth Preparedness programs that support practitioners as they create and run programs in their communities. Resources are available at www.ready.gov/youth-preparedness. The Youth Preparedness Catalogue. The catalogue describes national, regional, and state -level programs. http://www.fema_gov/media-library/assets/documents/94775. For more information on the Council please visit: www.ready_gov/youth-preparedness-council. Resource Management Planning • Developing/enhancing logistics and resource management plans • Developing/enhancing volunteer and/or donations management plans • Acquiring critical emergency supplies such as: shelf stable food products, water, and/or basic medical supplies. Acquisition of critical emergency supplies requires Page 32 0£ 46 Appendix A – FY 2016 THSGP Priorities 55A-102 each state to have FEMA's approval of a five-year viable inventory management plan if planned grant expenditure is over $100,000; an effective distribution strategy; sustainment costs for such an effort Evacuation planning • Developing/enhancing evacuation plans, including plans for: alerts/warning, crisis communications, pre -positioning of equipment for areas potentially impacted by mass evacuations, sheltering, and re-entry. Recovery Planning • Disaster housing planning, such as creating/supporting a state disaster housing task force and developing/enhancing state disaster housing plans • Pre -event response/recovery/mitigation plans in coordination with state, local, and tribal governments • Developing/enhancing other response and recovery plans • Developing recovery plans and preparedness programs consistent with the principles and guidance in the National Disaster Recovery Framework (NDRF) that will provide the foundation for recovery programs and whole -community partnerships. Preparedness and pre -disaster planning was given special attention within the NDRF with specific guidance: Planning for a Successful Disaster Recovery (pages 63-70). For more information on the NDRF see htt://www.fema.Rov/pdf/reeoveryframework/ndr£ndf and http://www.fema.gov/media-libraKy--data/ 1423604728233- ld76a43cabf1209678054c0828bbe8b8/EffectiveCoordinationofRecoveryResorrrcesG uide02O5l5vFNL.pdf Federal (and Mutual Aid) Emergency Response Official (F/ERO) Credentialing and Validation • Working group meetings and conferences relating to emergency responder credentialing and validation • Compiling data to enter into an emergency responder repository • Coordinating with other state, local, territorial, and tribal partners to ensure interoperability among existing and planned credentialing and validation systems and equipment • Planning to incorporate emergency responder identity and credential validation into training and exercises. Organization Per the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, (42 U.S.C. §§ 5121-5207), EMPG Program fluids may be used for all -hazards emergency management operations, staffing, and other day-to-day activities in support of emergency management, including hazard mitigation staffing of the State Hazard Mitigation Officer (SHMO) position; staffing CERT and Citizen Corps positions at the state and local levels in order to promote whole community engagement in all phases of emergency management; performing close-out activities on FEMA Disaster Assistance grants; staffing permanent technical advisors on children's needs at the state, local, tribal and territorial levels and supporting fusion center analysts who are directly involved in all -hazards preparedness activities Page 33 of 46 Appendix 13- FY 2016.EMPG Program Funding Guidelines 55A-103 as defined by the Stafford Act. Proposed staffing activities should be linked to accomplishing the activities outlined in the EMPG Program Work Plan. Recipients are encouraged to fiord at least one dedicated Planner, Training Officer, and Exercise Officer. Personnel costs, including salary, overtime, compensatory time off, and associated fringe benefits, are allowable costs with EMPG Program fiords. These costs must comply with 2 C.F.R. Part 200, Subpart E — Cost Principles. Equipment Allowable equipment categories for the EMPG Program are listed on the web -based version of the Authorized Equipment List (AEL) at https://www.fema.gov/authorized-equipment-list. Unless otherwise stated, equipment must meet all mandatory regulatory and/or FEMA -adopted standards to be eligible for purchase using these funds. In addition, agencies will be responsible for obtaining and maintaining all necessary certifications and licenses for the requested equipment. Allowable equipment includes equipment from the following AEL categories: • Personal Protective Equipment (PPE) (Category 1) • Information Technology (Category 4) • Cybersecurity Enhancement Equipment (Category 5) • Interoperable Communications Equipment (Category 6) • Detection Equipment (Category 7) • Power Equipment (Category 10) • Chemical, Biological, Radiological, Nuclear, and Explosive (CBRNE) Reference Materials (Category 11) • CBRNE Incident Response Vehicles (Category 12) • Physical Security Enhancement Equipment (Category 14) • CBRNE Logistical Support Equipment (Category 19) • Other Authorized Equipment (Category 21) In addition to the above, general purpose vehicles are allowed to be procured in order to carry out the responsibilities of the EMPG Program. If recipients have questions concerning the eligibility of equipment not specifically addressed in the AEL, they should contact their Regional EMPG Program Manager for clarification. Applicants should analyze the cost benefits of purchasing versus leasing equipment, especially high cost items and those subject to rapid technical advances. Large equipment purchases must be identified and explained. For more information regarding property management standards for equipment, please reference 2 C.F.R. Part 200, including 2 C.F.R. §§ 200.310, 200.313, and 200.316. Controlled Equipment Grant fiords may be used for the purchase of Controlled Equipment, however, because of the nature of the equipment and the potential impact on the community, there are additional and Page 34 of 46 Appendix B- FY 2016 EMPG Program Funding Guidelines 55A-104 specific requirements in order to acquire this equipment. Refer to Information Bulletin 407 Use of Grant Funds for Controlled Equipment for the complete Controlled Equipment List, information regarding the Controlled Equipment Request Form, and a description of the specific requirements for acquiring controlled equipment with DHS/FEMA grant funds. For additional information on controlled equipment refer to Executive Order (EO) 13688 Federal Support for Local Law Enforcement Equipment Acquisition, and the Recommendations Pursuant to Executive Order 13688. Requirements for Small Unmanned Aircraft System All requests to purchase Small Unmanned Aircraft System (SUAS) with FEMA grant funding must also include the policies and procedures in place to safeguard individuals' privacy, civil rights, and civil liberties of the jurisdiction that will purchase, take title to, or otherwise use the SUAS equipment, see Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties, in Domestic Use of Unmanned Aircraft Systems, tom, issued February 20, 2015. Training EMPG Program funds may be used for a range of emergency management -related training activities to enhance the capabilities of state and local emergency management personnel through the establishment, support, conduct, and attendance of training. Training activities should align to a current, Multi -Year TEP developed through an annual TEPW. Further guidance concerning the TEP and the TEPW can be found at http://www.fema.Rov/exercise. Training should foster the development of a community oriented approach to emergency management that emphasizes engagement at the community level, strengthens best practices, and provides a path toward building sustainable resilience. EMPG Program funds used for training should support the nationwide implementation of NIMS. The NIMS Training Program establishes a national curriculum for NIMS and provides information on NIMS courses; recipients are encouraged to place emphasis on the core competencies as defined in the NIMS Training Program. The NIMS Training Program can be found at http://www.fema.ggv/training-0. The NIMS Guideline for Credentialing of Personnel provides guidance on the national credentialing standards. The NIMS Guidelines for Credentialing can be found at http://www.fema.gov/nims-doetrine-sMorting-guides-tools. Professional Development Series courses include: • IS -120.a An Introduction to Exercises • 15-230.d Fundamentals of Emergency Management • IS -235.b Emergency Planning • IS -240.b Leadership and Influence • IS -24 Lb Decision Making and Problem Solving • IS -242.b Effective Communication • IS -244.b Developing and Managing Volunteers Page 35 of 46 Appendix B- FY 2016 EMPG Program Funding Guidelines 55A-105 To ensure the professional development of the emergency management workforce, the recipients must ensure a routine capabilities assessment is accomplished and a TEP is developed and implemented. For additional information on review and approval requirements for training courses funded with preparedness grants please refer to the following policy: httn://www.fema.gov/media-library- data/1115d44e06367bb89510aafbe79cl875/FINAL GPD+Training+Three+for+Free+Policy 09 +10+13.ndf. Additional types of training or training related activities include, but are not limited to, the following: • Developing/enhancing systems to monitor training programs • Conducting all hazards emergency management training • Attending Emergency Management Institute (EMI) training or delivering EMI train - the -trainer courses • Attending other FEMA -approved emergency management training • State -approved, locally -sponsored CERT training • Mass evacuation training at local, state, and tribal levels Allowable training -related costs include the following: Funds Used to Develop, Deliver, and Evaluate Training. This includes costs related to administering the training: planning, scheduling, facilities, materials and supplies, reproduction of materials, and equipment. Training should provide the opportunity to demonstrate and validate skills learned, as well as to identify any gaps in these skills. Any training or training gaps, including those for children and individuals with disabilities or access and functional needs, should be identified in the Multi-year TEP and addressed in the training cycle. States are encouraged to use existing training rather than developing new courses. When developing new courses states are encouraged to apply the Analysis Design Development and Implementation Evaluation (ADDIE) model for instruction design. Overtime and Backfill. The entire amount of overtime costs, including payments related to backfilling personnel, which are the direct result of attendance at FEMA and/or approved training courses and programs are allowable. These costs are allowed only to the extent the payment for such services is in accordance with the policies of the state or unit(s) of local government and has the approval of the state or FEMA, whichever is applicable. In no case is dual compensation allowable. That is, an employee of a unit of government may not receive compensation from their unit or agency of government AND from an award for a single period of time (e.g., 1:00 p.m. to 5:00 p.m.), even though such work may benefit both activities. Travel. Travel costs (e.g., airfare, mileage, per diem, and hotel) are allowable as expenses by employees who are on travel status for official business related to approved training. Page 36 of 46 Appendix B- FY 2016 EMPG Program Funding Guidelines 55A-106 Hiring of Full or Part -Time Staff or Contractors/Consultants. Full or part-time staff or contractors/consultants may be hired to support direct training -related activities. Payment of salaries and fringe benefits must be in accordance with the policies of the state or unit(s) of local government and have the approval of the state or FEMA, whichever is applicable. Certification/Reeertification of Instructors. Costs associated with the certification and re -certification of instructors are allowed. States are encouraged to follow the FEMA Instructor Quality Assurance Program to ensure a minimum level of competency and corresponding levels of evaluation of student learning. This is particularly important for those courses which involve training of trainers. Exercises Allowable exercise -related costs include: Funds Used to Design, Develop, Conduct and Evaluate an Exercise. This includes costs related to planning, meeting space and other meeting costs, facilitation costs, materials and supplies, travel, and documentation. Recipients are encouraged to use free public space/locations/facilities, whenever available, prior to the rental of space/locations/facilities. Exercises should provide the opportunity to demonstrate and validate skills learned, as well as to identify any gaps in these skills. Gaps identified during an exercise including those for children and individuals with disabilities or access and functional needs, should be identified in the AA'R/IP and addressed in the exercise cycle. Hiring of Full or Part -Time Staff or Contractors/Consultants. Full or part—time staff may be hired to support direct exercise activities. Payment of salaries and fringe benefits must be in accordance with the policies of the state or unit(s) of local government and have the approval of the state or FEMA, whichever is applicable. The services of contractors/consultants may also be procured to support the design, development, conduct and evaluation of exercises. Overtime and Backfill. The entire amount of overtime costs, including payments related to backfilling personnel, which are the direct result of time spent on the design, development and conduct of exercises are allowable expenses. These costs are allowed only to the extent the payment for such services is in accordance with the policies of the state or unit(s) of local government and has the approval of the state or FEMA, whichever is applicable. In no case is dual compensation allowable. That is, an employee of a unit of government may not receive compensation from their unit or agency of government AND from an award for a single period of time (e.g., 1:00 p.m. to 5:00 p.m.), even though such work may benefit both activities. Travel. Travel costs (e.g., airfare, mileage, per diem, hotel) are allowable as expenses by employees who are on travel status for official business related to the planning and conduct of the exercise activities. Supplies. Supplies are items that are expended or consumed during the course of the planning and conduct of the exercise activities (e.g., gloves, non-sterile masks, and disposable protective equipment). Implementation of HSEEP. This refers to costs related to developing and maintaining an exercise program consistent with HSEEP. Page 37 of 46 Appendix B- FY 2016 EMPG Program Funding Guidelines 55A-107 Other Items. These costs are limited to items consumed in direct support of exercise activities such as the rental of space/locations for planning and conducting an exercise, rental of equipment, and the procurement of other essential nondurable goods. Recipients are encouraged to use free public space/locations, whenever available, prior to the rental of space/locations. Costs associated with inclusive practices and the provision of reasonable accommodations and modifications that facilitate full access for children and adults with disabilities are allowable. Unauthorized exercise -related costs include: Reimbursement for the maintenance and/or wear and tear costs of general use vehicles (e.g., construction vehicles) and emergency response apparatus (e.g., fire trucks, ambulances). The only vehicle costs that are reimbursable are fuel/gasoline or mileage. Equipment that is purchased for permanent installation and/or use, beyond the scope of exercise conduct (e.g., electronic messaging signs) Durable and non -durable goods purchased for installation and/or use beyond the scope of exercise conduct Construction and Renovation Construction and renovation projects for a state, local, territorial, or Tribal government's principal Emergency Operations Center (EOC) as defined by the SAA are allowable' ander the EMPG Program. Written approval must be provided by FEMA prior to the use of any EMPG Program funds for construction or renovation. Requests for EMPG Program funds for construction of an EOC must be accompanied by an EOC Investment Justification (FEMA Form 089-0-0-3; OMB Control Number 1660-0124 (hLtp://www.fema.gov/i)df/eoverninent/grant/201 l/fvI l eoc invydf) to their Regional EMPG Program Manager for review. Additionally, recipients are required to submit a SF -424C Budget and Budget detail citing the project costs. When applying for funds to construct communication towers, recipients and subrecipients must submit evidence that the Federal Communication Commission's (FCC) Section 106 review process has been completed and submit all documentation resulting from that review to GPD prior to submitting materials for EHP review. Recipients and subrecipients are also encouraged to have completed as many steps as possible for a successful EHP review in support of their proposal for funding (e.g., coordination with their State Historic Preservation Office to identify potential historic preservation issues and to discuss the potential for project effects, compliance with all state and EHP laws and requirements). Projects for which the recipient believes an Environmental Assessment (EA) may be needed, as defined in 44 C.P.R. § 10.8, must also be identified to the FEMA EMPG Regional Program Manager within six months of the award and completed EHP review materials must be submitted no later than 12 months before the end of the period of performance. EHP review packets should be sent to gpdehRinfo@fema. ov. EMPG Program recipients using finds for construction projects must comply with the Davis - Bacon Act (40 U.S.C. §§ 3141 et seq.). Grant recipients must ensure that their contractors or subcontractors for construction projects pay workers no less than the prevailing wages for Page 38 of 46 Appendix B- FY 2016 EMPG Program Funding Guidelines 55A-108 laborers and mechanics employed on projects of a character similar to the contract work in the civil subdivision of the state in which the work is to be performed. Additional information regarding compliance with the Davis -Bacon Act, including Department of Labor (DOL) wage determinations, is available from the following website: http://www.dol.gov/complliance/laws/comp-dbra.htm. Maintenance and Sustainment The use of FEMA preparedness grant funds for maintenance contracts, warranties, repair or replacement costs, upgrades, and user fees are allowable under all active grant awards, unless otherwise noted. EMPG Program grant funds are intended to support the Goal and fund activities and projects that build and sustain the capabilities necessary to prevent, protect against, mitigate the effects of, respond to, and recover from those threats that pose the greatest risk to the security of the Nation. In order to provide recipients the ability to meet this objective, the policy set forth in GPD's IB 379 (Guidance to State Administrative Agencies to Expedite the Expenditure of Certain DHS/FEMA Grant Funding) allows for the expansion of eligible maintenance and sustainment costs, which must be in: (1) direct support of existing capabilities; (2) must be an otherwise allowable expenditure under the applicable grant program; (3) be tied to one of the core capabilities in the five mission areas contained within the Goal, and (4) shareable through the SMAC. Additionally, eligible costs may also be in support of equipment, training, and critical resources that have previously been purchased with either federal grant funding or any other source of funding other than DHS/FEMA preparedness grant program dollars. Additional guidance is provided in FEMA Policy FP 205-402-125-1, Maintenance Contracts and Warranty Coverage Funded by Preparedness Grants, located at: http://www.fema.gov/media- library/assets/documents/32474. Unallowable Costs Prohibited Equipment: Grant funds may not be used for the purchase of Prohibited Equipment. Refer to Information Bulletin 407 Use of Grant Funds for Controlled Equipment for the complete Prohibited Equipment List. For additional information on Prohibited Equipment see Executive Order (EO,L13688 Federal Sppon rt for Local Law Enforcement Equipment Acquisition, and the Recommendations Pursuant to Executive Order 13688. Expenditures for weapons systems and ammunition Costs to support the hiring of sworn public safety officers for the purposes of fulfilling traditional public safety duties or to supplant traditional public safety positions and responsibilities Activities and projects unrelated to the completion and implementation of the EMPG Program In general, recipients should consult with their EMPG Regional Program Manager prior to making any investment that does not clearly meet the allowable expense criteria established in this Guidance. Page 39 of 46 Appendix B- FY 2016 EMPG Program Funding Guidelines 55A-109 Appendix C — FY 2016 EMPG Program Work Plan EMPG Program Work Plan Instructions All EMPG Program applicants are encouraged to use the templates to submit a required Work Plan that outlines the state's emergency management sustainment and enhancement efforts, including new and ongoing activities and projects, proposed for the EMPG Program period of performance. The Work Plan consists of a Program and Budget Narrative, Personnel Data Table, Training Data Table, Exercise Data Table, and Grant Activities Outline. EMPG Regional Program Managers will work closely with states to monitor Work Plans daring the performance period and may request further documentation from the recipients to clarify the projected work plan. In addition, EMPG Regional Program Managers must approve final Work Plans before states may draw down EMPG Program funds. Grant funds will be released upon approval of the state's final Work Plan. Program and Budget Narrative Provide a brief description of the state emergency management priorities and initiatives that will be addressed with EMPG Program fonds. In addition, the narrative should address the following: • Overview of the state's risk profile resulting from the current THIRA • Areas of need identified through assessment processes such as the SPR, Emergency Management Accreditation Program Assessment Process, National Emergency Communications Plan Goal Assessments, or other emergency management assessment processes • Baseline inventory of where states are now relative to goals and objectives identified in relevant strategic plans per CPG 101 v.2 • State emergency management priorities and planning focus for current budget year (including linkage to the core capabilities identified in the Goal) • Detailed Budget Narrative justifying the requested funding for the identified Work Plan activities • Description of how projects and programmatic activities support the building or sustainment of the core capabilities as outlined in the Goal Personnel Data Table To facilitate consistent data reporting and performance measures collection, a Personnel Data Table should be completed for state, local, tribal and territory (SLTT) personnel supported with EMPG Program funds. This will assist in dociunenting the extent to which EMPG Program finding supports personnel at the state -level. Submit this template with the EMPG Program Work Plan and a roster of EMPG-fimded personnel. The roster of EMPG-fimded personnel should be updated only if numbers change more than 10 percent during the award period of performance. Page 40 of 46 Appendix C- FY 2016 EMPG Program Work Plan 55A-110 Personnel Data Table Template Personnel Metries Data EMPG Program finds (Federal and match) allocated towards state emergency management personnel EMPG Program funds (Federal and match) allocated towards non -state emergency management personnel local, Tribal, territories) Total Number of state emergency management frill -time equivalent (FTE) personnel (including those supported and not supported by the EMPG Program) Nrunber of state emergency management full-time equivalent (FTE) personnel supported (fully or partially) by the EMPG Program Total Number of state, local, Tribal and territory (SLTT) emergency management personnel supported (fully orpartially) by the EMPG Program Personnel Data Table Definitions Line 1 — All EMPG Program funds (Fed & match) allocated for state emergency management personnel Line 2 — All EMPG Program funds (Fed & match) allocated towards non -state emergency management personnel (Local, Tribal, Territories) Line 3 — Total Number of state emergency management full-time equivalent (FTE) personnel (including those supported and not supported by the EMPG Program) Line 4 — Number of state emergency management full-time equivalent (FTE) personnel supported by the EMPG Program Line 5 — Total Number of state and local emergency management personnel funded (fully or partially) by the EMPG Program. This number provides the "Universe" number for the Training & Exercise templates Training Data Table To facilitate consistent data reporting and performance measures collection, a Training Data Table should be completed for training courses that meet the EMPG reporting requirements. This template should reflect training activities outlined in the Multi -Year TEP and completion of EMPG Program training requirements. EMPG Program funded personnel should complete the listed training requirements and record proof of completion. Page 41 of 46 Appendix C- FY 2016 EMPG Program Work Plan 55A-111 Training Data Table Template Training Data Table Definitions: Col 1 — Name of Training Col 2 — Is the coarse required of EMPG-funded personnel? Cot 3 — # of Personnel Trained Cot 4 — Total # of SLTT EMPG Funded Personnel (Universe) Col 5 — Total # of SLTT EMPG Funded Personnel that completed the Course Col — Is the training identified in the multi-year TEP? Exercise Data Table To facilitate consistent data reporting and performance measure collection, an Exercise Data Table should be completed for any exercises that meet EMPG requirements and/or exercises conducted in whole or part with EMPG funds. Recipients shall conduct no less than four quarterly exercises and one full-scale exercise within a 12 -month period. The five exercises shall be linked to common program priorities and reflect a progressive exercise series of increasingly complex exercises with each building upon the previous one while incorporating prior lessons learned. The exercises should be part of the recipient's progressive exercise program and outlined in the Multi-year TEP. EMPG Program funded personnel shall participate in no less than three exercises. Page 42 of 46 Appendix C- FY 2016 EMPG Program Work Plan 55A-112 Total ,# of SLIT EMPG Total # of EMPG Training Required Number of ' SLTT Funded Identified' Name of Training � Training. Personnel EMPG Personnel in TEP (Y/N) Trained Funded that (Y/N) Personnel completed the Course Training Data Table Definitions: Col 1 — Name of Training Col 2 — Is the coarse required of EMPG-funded personnel? Cot 3 — # of Personnel Trained Cot 4 — Total # of SLTT EMPG Funded Personnel (Universe) Col 5 — Total # of SLTT EMPG Funded Personnel that completed the Course Col — Is the training identified in the multi-year TEP? Exercise Data Table To facilitate consistent data reporting and performance measure collection, an Exercise Data Table should be completed for any exercises that meet EMPG requirements and/or exercises conducted in whole or part with EMPG funds. Recipients shall conduct no less than four quarterly exercises and one full-scale exercise within a 12 -month period. The five exercises shall be linked to common program priorities and reflect a progressive exercise series of increasingly complex exercises with each building upon the previous one while incorporating prior lessons learned. The exercises should be part of the recipient's progressive exercise program and outlined in the Multi-year TEP. EMPG Program funded personnel shall participate in no less than three exercises. Page 42 of 46 Appendix C- FY 2016 EMPG Program Work Plan 55A-112 Exercise Data Table Template Name/ Description of Exercise Date Type of Total # of SLTT Number of SLIT EMPG ' Exercise Exercise EMPG Funded Program Funded Personnel Scheduled/ Completed personnel Participating in Exercise. Page 43 of 46 Appendix C- FY 2016 LMPG Program Work Plan 55A-113 Exercise Data Table Definitions: Col 1 — Name/Description of Exercise Col 2 — Date of exercise Col 3 — Type of exercise (e.g., seminar, workshop, tabletop, games, drills, functional, and/or full-scale) Col 4 — Total # of SLTT EMPG Funded Personnel (Universe) Col 5 — Total # of SLTT EMPG Funded Personnel Participating in Exercise Grant Activities Outline To facilitate performance measures and focus on outcomes, an EMPG Program Grant Activities Outline should be completed for activities supported with FY 2016 EMPG Program funds (including construction and renovation projects). The data outlined in this template will be used to evaluate the timely completion of planned emergency management activities. Recipients are encouraged to complete a separate Grant Activities Outline for each Emergency Management Function (EMF). Quarterly training activities should be reported against EMF #13, "Training," and quarterly exercise activities should be reported against EMF 414, "Exercises, Evaluations and Corrective Actions." Recipients should complete a template as shown on the next page and address the following areas: • EMF Number. Identify how the grant activities relate to the EMFs outlined in the September 2013 version of the Emergency Management Accreditation Program (EMAP) Standard (e.g. Resource Management, Communications and Warning, etc.) The link to the EMAP 2013 Standard is at :http://www.emm.orL/index,phi)/what-is- ema /tlze-emergency-mana eg ment-standard • Name of Planned Project. Provide a descriptive name of each planned project. Examples include "Development of Emergency Function Annexes", "Development of Earthquake Scenario Loss Estimations", "Implementation of Statewide Interoperability • Plan", "NIMS Training for Emergency Management Personnel', "Development of Emergency Preparedness Plan for Individuals with Disabilities", etc. • Project Objective. Briefly explain the major objective of the project, including how the project will address gaps identified through various assessments conducted. • Core Capability Addressed. Briefly describe which of the 32 core capabilities (multiple can be selected) the project addresses. • Performance Measure and Basis of Evaluation. Indicate the performance measure that will be used to evaluate this project. Page 44 of 46 Appendix C- FY 2016 EMPG Program Work Plan 55A-114 • Challenges/Risks. Identify any challenges to implementing this project or any of its activities. • Quarterly Activity. Break each project down into quarterly activities. For each quarter, briefly identify the activities that will accomplish the planned project. This information will provide the foundation for the second component of the Quarterly Performance Progress Report. • Step. Provide the status of planned quarterly activities (Initiate, Plan, Execute, Control, and Closeout). • Comments. Briefly describe the reason for the project status and provide other comments as needed. Include the number of training sessions funded and the number of personnel trained in this section. Grant Activities Outline - Template Name of Planned Project: Description Process Project Objective: Involves preparing for, assembling Initiate resume work on any particular activity Core Capabilities apply to any level, e.g. program, project, Addressed: base, activity, task. Performance Measure and Basis of Evaluation: Challenges/Risks: la" Quarter Activity Planned Activities: Step: Comments: (10/1/15-12/31/15 2A Quarter Activity Planned Activities: Step: Comments: (1/1/16-3/31/16) 3" Quarter Activity Planned Activities: Step: Comments: (4/1/16-6/30/16) 4" Quarter Activity Planned Activities: Step: Comments: (7/1/16-9/30/16) 5" Quarter Activity planned Activities: Step: Comments: 10/1/16-12/31/16 6"' Quarter Activity Planned Activities: Step: Comments: (1/1/17-3/31/17 7"' Quarter Activity Planned Activities: Step: Comments: (4/1/17-6/30/17 8' Quarter Activity Planned Activities: Step: Comments: (7/1/17-9/30/17) Project Management Lifecycle Steps Description Process The authorization to begin work or Involves preparing for, assembling Initiate resume work on any particular activity resources and getting work stated. May apply to any level, e.g. program, project, base, activity, task. Page 45 of 46 Appendix C- FY 2016 EMPG Program Work Plan 55A-115 Page 46 of 46 Appendix C- FY 2016 EMPG Program Work Plan 55A-116 The purposes of establishing, at an early Involves working out and extending the Plan date, the parameters of the project that is theoretical, practical, and/or useful going to be worked on as well as to try to application of an idea, concept, or delineate any specifics and/or any preliminary design. This also involves a peculiarities to the project as a whole plan for moving a project concept to a viable and/or any specific phases of the project. project. The period within the project lifecycle Involves directing, accomplishing, Execute during which the actual work of creating managing, and completing all phases and theproject's deliverables is carried out. aspects of work fora given project. A mechanism which reacts to the current Involves exercising corrective action as Control project status in order to ensure necessary to yield a required outcome accomplishment of project objectives. This consequent upon monitoring involves planning, measuring, monitoring, performance. Or, the process of and taking corrective action based on the comparing actual performance with results of the monitoring. planned performance, analyzing variances, evaluating possible alternatives, and taking appropriate correct action as needed. The completion of all work on a project. Involves formally terminating and Close Out Can also refer to completion of a phase of concluding all tasks, activities, and the project. component parts of a particular project, or phase of a project Page 46 of 46 Appendix C- FY 2016 EMPG Program Work Plan 55A-116 Attachment C GOV'ERNOR`S OFFICE OF EMERGENCY SERVICES Fiscal Year 2016 EMERGENCY MANAGEMENT PERFORMANCE GRANT (EMPG) PROGRAM California Supplement to the Federal Program Notice of Funding Opportunity, or, The State Guidance Director's Message California is the leader in emergency management and homeland security, a reputation earned empirically through hard work, dedication, and synergistic partnerships. However; now more than ever, state, local, and tribal governments are expected to do more to protect and prepare the State of California from all -hazards, both natural and human -caused. In the past several years, state, local, and tribal governments have increased their emergency response and management workload to be responsive to the increased needs of the public and, in part, to higher public safety awareness due to the recent disasters, such as the prolonged drought, Napa earthquake, active shootings and terrorist events, and the third worst fire season in California history. California must be ready to respond to multiple major events, as well as a catastrophic earthquake or flooding event. A safe and resilient California relies on strong, cohesive leadership and meaningful partnerships between all stakeholders. Protecting lives, property, and the environment in the most populous, diverse state in the nation is not an easy task; but, by enlisting, entrusting, empowering, and encouraging our state, local, and tribal partners, we will achieve our goal of safe and resilient communities. Given the necessary work that we must all do to ensure California's optimum readiness to withstand or rebound from any hazard, event, or emergency, it is essential that we leverage all available funding streams, including emergency management grant funds, to assist us in our joint mission. To that end, I am pleased to announce the release of the California Governor's Office of Emergency Services (Cal OES) Fiscal Year 2016 Emergency Management Performance Grant (EMPG) Program — California Supplement to the Federal Program Notice of Funding Opportunity; or The State Guidance. ►mss cc�r� MARK S. GHILARDUCCI Director 55A-118 Table of Contents FEDERAL PROGRAM GUIDANCE...................................................................................................................... I INFORMATION BULLETINS..............................................................................................................................1 GRANT MANAGEMENT MEMORANDUMS........................................................................................................ I PURPOSE OF THIS SUBAWARD & GUIDANCE...................................................................................................1 ELIGIBLE SUBAWARD SUBRECIPIENTS............................................................................................................1 SUBRECIPIENTS / PASS-THROUGH ENTITIES...................................................................................................1 PERFORMANCE PERIOD...................................................................................................................................2 MATCH REQUIREMENTS.................................................................................................................................2 ALLOCATIONS AND METHODOLOGY...............................................................................................................2 EXCESSFUNDS...............................................................................................................................................2 INDIRECTCOSTS.............................................................................................................................................2 CONFLICT OF INTEREST..................................................................................................................................2 SUBAwARD TIMELINES / KEY DATES.............................................................................................................3 WHAT'S NEw?...............................................................................................................................................4 EMPG PROGRAM EMPHASIS..........................................................................................................................4 APPLICANTRESPONSIBILITIES........................................................................................................................5 APPLICATIONDOCUMENTS.............................................................................................................................5 OPTIONAL APPLICATION COMPONENTS..........................................................................................................6 GOVERNING BODY RESOLUTION(GBR).........................................................................................................6 ADDENDUM TO GOVERNING BODY RESOLUTION...........................................................................................6 OFFICIAL WRITTEN CORRESPONDENCE..........................................................................................................6 SOLESOURCE PROCUREMENT........................................................................................................................6 GRANTASSURANCES......................................................................................................................................7 NIMSADOPTION............................................................................................................................................7 APPLICATIONDUE DATE................................................................................................................................7 APPLICATION SUBMITTAL...............................................................................................................................8 EMPG PROGRAM SPECIALISTS.......................................................................................................................8 MAILINGADDRESS.........................................................................................................................................8 APPROVAL OF APPLICATION...........................................................................................................................8 ADDITIONALFUNDS.......................................................................................................................................8 APPLICABLE LAWS & REGULATIONS..............................................................................................................9 ENVIRONMENTAL PLANNING AND HISTORIC PRESERVATION (EHP) COMPLIANCE ........................................9 FEDERALLY MANDATED OBJECTIVE INFORMATION.....................................................................................10 55A-119 EXTENSIONREQUESTS..................................................................................................................................10 VALIDATING CAPABILITIES OBJECTIVE: DEVELOP AND MAINTAIN MULTI-YEAR TSPS..............................11 VALIDATING CAPABILITIES OBJECTIVE: EXERCISE......................................................................................11 VALIDATING CAPABILITIES OBJECTIVE: TRAINING......................................................................................12 TRAININGFEEDBACK NUMBER.....................................................................................................................13 SUBCONTRACTS............................................................................................................................................13 SYSTEM FOR AWARD MANAGEMENT (SAM)...............................................................................................13 MAINTENANCEAND SUSTAINMENT..............................................................................................................13 UNALLOWABLECOSTS.................................................................................................................................14 SUPPLANTING...............................................................................................................................................14 ACCESSIBILITYOF RECORDS........................................................................................................................14 REIMBURSEMENT OF ELIGIBLE COSTS..........................................................................................................14 SUBAWARDMODIFICATIONS........................................................................................................................14 PERFORMANCEREPORTS..............................................................................................................................1 S CLOSEOUT....................................................................................................................................................15 RECORDSRETENTION...................................................................................................................................15 FINALSUBAWARD REPORT...........................................................................................................................15 AUDITREQUIREMENTS.................................................................................................................................15 MONITORING SUBAWARD PERFORMANCE....................................................................................................15 SUBAWARD-RELATED DOCUMENTS: I • FINANCIAL MANAGEMENT FORMS WORKBOOK (FMFW) - (REQUIRED) • GOVERNING BODY RESOLUTION (GBR) & ADDENDUM TO GBR - (REQUIRED) • GRANT ASSURANCES - (REQUIRED) • FY 2016 EMPG PROGRAM APPLICATION CHECKLIST - (REQUIRED) • INDIRECT COST RATE NEGOTIATION AGREEMENT - (REQUIRED IF APPLICABLE) • EXCESS FUNDS STATEMENT FORM - (OPTIONAL) • ADDITIONAL PROJECT USING EXCESS FUNDS FORM - (OPTIONAL) • ADDITIONAL PROJECT USING EXCESS FUNDS DETAILED BUDGET FORM - (OPTIONAL) • HOW TO SUBMIT AN EMPG MODIFICATION REQUEST - (INSTRUCTIONAL) • HOW TO SUBMIT AN EMPG REIMBURSEMENT REQUEST - (INSTRUCTIONAL) ' All documents are located on the Cal OES website at: http://www caloes ca gov/GrantsManagementSite/Pages/Fmergency-Management- Perfonnance-Grant.asnx 55A-120 Federal Program The Department of Homeland Security (DHS) Notice of Funding Opportunity (NOFO) Guidance Fiscal Year 2016 Emergency Management Performance Grant Program (EMPG) was published on February 16, 2010 Information DHS issues Information Bulletins that provide updates, clarification, and requirements Bulletins throughout the life of the grant.3 Grant Cal OES periodically issues Grant Management Memorandums (GMMs). GMMs that Management provide additional information regarding EMPG funds are located on the Cal OES website.4 Memorandums Purpose of this The purpose of the Emergency Management Performance Grant (EMPG) Program is to Subaward & provide federal funds to states to assist state, local, and tribal governments in preparing for all Guidance hazards. Funds provided under the EMPG must be used to support activities that contribute to the Operational Area's capability to prevent, prepare for, tnitigate against, respond to, and recover from emergencies and disasters, whether natural or man-made. This California Supplement to the Federal Program Notice of Funding Opportunity; or, The State Guidance will provide the Operational Areas (OAs) with guidance and forms to apply for, perform, and closeout the FYI EMPG subaward. This supplemental guide specifies the performance period, objectives, eligible activities, and other subaward-related information and requirements. This document is to supplement The Department of Homeland Security (DHS) Notice of Funding Opportunity (NOFO) Fiscal Year 2016 Emergency Management Performance Grant Program (EMPG). Eligible The eligible subaward subrecipients are the 58 county Operational Areas (OAs). The Tribal Subaward Guidance will be issued under separate cover. Subecipients (Subrecipients may contract with any other public or private organizations to perform eligible activities on approved projects.) Note: Cal OES is the `recipient'; the county is the `subrecipient'; and the county's pass- through entities are `subrecipients.' For a definition of the term subrecipient, refer to 2 Code of Federal Regulations (C.F.R.) § 200.93. Subrecipient / Any time grant funds are given to a subrecipient, such as a political subdivision (city, town, Pass -Through or special district) or federally -recognized tribe, the county/pass-through entity must ensure Entities that the terms and conditions of this subaward are included as part of the Subaward agreement with the subrecipient. 'The Department of Homeland Security (DHS) Notice of Funding Opportunity (NOFO) Fiscal Year 2016 Emergency Management Performance Grant Program (EMPG) may be viewed and downloaded at: htip://www.fema.gov/media-library-data/1455571902574- a84Ba1b2f450795a70ccelf5ce7b967/FP 2016 EMPG NOFO FINAL.ndf. 3 Information Bulletins may be obtained at: http://www,fema.gov/grants/grant:programs-directorate-information-bulletins. 4 GMMs are located at http://www.caloes.ca.nov/GrantsManagementSite/PavesBmergency-Management-Performance-Grant,asnx. 55AL1i 21 Performance The performance period for FY16 EMPG is July 1, 2016, through June 30, 2017. All Period subaward activities must be completed and all grant funds expended within this period. Pending receipt of all valid application materials, subrecipients may request retroactive reimbursement of Financial Management Forms Workbook (FMFW) approved activities and budgeted items to the start of the performance period listed above; with the exception of equipment and critical emergency supplies. Procurement of equipment and critical emergency supplies shall occur only after the OA is in award, and any applicable federal, as well as state, restrictions associated with these items have been met. Match The FY16 EMPG requires a dollar -for -dollar match. This can be cash or third party in-kind Requirements contributions. Refer to 2 C.F.R. § 200.29 and § 200.306 for specific details. Allocations and California will subaward a total of $15,481,623 to Operational Areas. The local allocations Methodology were determined using a $125,000 base award, with remaining funds distributed using per capita figures in the Department of Finance's yearly report called: E-1: City/County Population Estimates with Annual Percent Changes Excess Funds While developing an application, if it is determined that all allocated funds cannot be expended by the end of the performance period and the need to return funds to Cal OES exists, then it will be necessary to complete the Excess Funds Statement Forma These funds may then be reallocated to other OAs who have identified one-time projects they would like to undertake; if funding is available and the project is selected for funding by Cal OES. Indirect Costs Indirect costs are allowable under the FY16 EMPG subaward. Subrecipients wishing to claim indirect costs may do so using either of the following two methods: 1. Subrecipients with an indirect cost rate approved by their cognizant federal agency may claim indirect costs based on the established rate. Indirect costs claimed must be calculated using the base approved in the indirect cost Negotiation Agreement. A copy of the approved Negotiation Agreement is required at the time of application. 2. Subrecipients who have never received a negotiated indirect cost rate and receive less than $35 million in direct federal funding per year may claim the 10% de minimis indirect cost rate based on Modified Total Direct Costs (MTDC) as described in 2 C.F.R. § 200.68 and Subpart E. Indirect costs are in addition to the M&A allowance, and must be included in the subaward application as a "Project" and reflected in the FMFW on the Indirect Cost Category Ledger if being claimed under the subaward. Conflict of Subrecipients must disclose to their Cal OES EMPG Program Specialist, in writing, Interest any real or potential conflict of interest as defined by the federal, state, local, or tribal statutes or regulations or their own existing policies, which may arise during the administration of the EMPG award within five days of learning of the conflict of interest. 'This report can be accessed at the following website: htW://www dof ea gov/research/demographic/reports/estimates/e-1/view nht). 'This form is located at: http•//www caloes ca gov/GraptsManagementSite/Pages/Emergency-Management-Performance-Grant.aspx, under EMPG Forms. [21 55A-122 Subaward Timelines / I{ey Dates February 16, 2016 DHS releases announcement of FY16 EMPG March 18, 2016 Cal OES's Application due to DHS May 27, 2016 California Supplement to the Federal Program Notice of Funding Opportunity, or, The State Guidance released June 7, 14, 15, 17, 21, 22, 2016 EMPG Application Workshops June 24, 2016 Electronic copy of completed FMFW and other application documents due to your Cal OES EMPG Program Specialist for review and vetting July 1, 2016 Subrecipient Performance Period Begins July 22, 2016* The OA's completed/vetted applications must be received by Cal OES Grants Management *Submit as soon as possible, but Unit Program Specialist by this date no later than July 22, 2016 September 2, 2016 Anticipated date that OAs will be notified of application approval and award September 30, 2016 DHS awards grant funds to Cal OES September 30, 2016 MY-TEPs due to be submitted October 14, 2016 Submission of the FY16 EMPG Performance Report for the Period of 7/1/2016 — 9/30/2016 January 13, 2017 Performance Report due to Program Specialist for 7/1/2016-12/31/2016 April 14, 2017 Performance Report due to Program Specialist for 7/1/2016 — 3/31/2017 June 30, 2017 Subrecipient performance period ends. All subaward activities must be completed and all rant funds expended July 14, 2017 Final Performance Report due to Program Specialist for 7/1/2016 — 6/30/2017 July 14, 2017 Final Reimbursement Request due to Program Specialist September 30, 2017 Cal OES's Federal Performance Period Ends 55AL3i 23 What's New? Restrictions regarding certain AEL equipment, known as "Controlled Equipment" went into effect on October 1, 2015, and are applicable to the FYI EMPG Program. On February 16, 2016, FEMA released an Information Bulletin (IB) on the topic entitled "Information Bulletin 407: Use of Grant Funds for Controlled Equipment "7 IB 407 provides details on the process and requirements for requesting controlled equipment. FYI EMPG subrecipients seeking acquisition of controlled equipment using FYI EMPG funds must complete FEMA Form 087-0-0-1: Controlled Equipment Requests and submit it to their Cal OES EMPG Program Specialist for review, consideration, and potential approval. Note: Acquisition of the controlled equipment may NOT occur PRIOR to the subrecipient receiving a FEMA Grants Program Directorate (GPD) approval from their Cal OES EMPG Program Specialist, as well as satisfying all other controlled equipment associated requirements and certifications. Failure to comply may result in disallowance of costs, increased monitoring, and termination of subaward. EMPG The FYI EMPG Program will focus on the building, sustainment, and delivery of all -hazards Program emergency management capabilities in the following areas: Emphasis . Planning • Organization • Equipment Acquisitions • Training • Exercises • EOC Constriction and Renovation • Maintenance and Sustainment The FYI EMPG Program plays an important role in the implementation of the National Preparedness System (NPS)9 by supporting the development and sustainment of core capabilities. Core capabilities are essential for the execution of each of the five mission areas outlined in the National Preparedness Goal (NPG). The development and sustainment of these core capabilities are not exclusive to any single level of government or organization, but rather require the combined effort of the whole community. The FYI EMPG Program supports all core capabilities in the Prevention, Protection, Mitigation, Response, and Recovery mission areas based on allowable costs. ' Information Bulletin No. 407 can be located at: littps://www.fema.gov/media-libEW/assets/documents/I 14557 s FEMA Form 087-0-0-1 can be located at: https•//www fema aov/media-library/assets/documents/115708 ' The National Preparedness System can be located at: biW://www.fema.gov/national-prgparedness-systein [4] 55A-124 Applicant The applicants' responsibilities are to: Responsibilities 1. Submit a finalized FMFW application, both electronic copy and hard copy, to their Cal OES EMPG Program Specialist as soon as possible, but no later than July 22, 2016; along with all other required application components. Note: An electronic copy of the proposed FMFW and other required application documents shall be submitted for Program Specialist review and vetting prior to submission of signed hard copy original. The electronic copy of the FMFW and other required application documents should be submitted for Cal OES review by no later than June 24, 2016. 2. Comply with all terms and conditions contained in the Grant Assurances submitted with the FY16 EMPG application. In addition, if the OA subawards finds to other entities, their subaward agreements/contracts must also include these same terms and conditions; along with any local requirements. 3. Prepare and submit timely Performance Reports for the duration of the performance period. 4. Maintain financial management systems that support subaward activities in accordance with 2 C.F.R. § 200.302. 5. Submit revision requests to Cal OES and obtain approval prior to incurring any associated expenditures; if changes are required after the initial subaward. Further details are included in this guidance under "Subaward Modifications." 6. Deobligate unexpended subaward finds to Cal OES after all work has been completed and reimbursements have been disbursed. 7. Maintain property, programmatic, and financial records in accordance with the 2 C.F.R. Part 200 record retention requirements. 8. Comply with the audit requirements in 2 C.F.R. Part 200 Subpart F—Audit Requirements. 9. Complete all EMPG requirements associated with federal and state objectives; including but not limited to, staff training and exercises. 10. Submit all subaward-related paperwork including: Performance Reports, Reimbursement Requests, Modification Requests, and Amendments, by the identified due dates. 11. Comply with 2 C.F.R. Part 200 and FEMA Grant Programs Directorate (GPD) Policies. 12. Comply with DHS FY 2016 EMPG Program NOFO and the Cal OES FY 2016 EMPG Program - California Supplement to the Federal Program NOFO, as applicable. Application The application must include the following components: 10 Documents 1. Financial Management Forms Workbook (FMFW) 2. Governing Body Resolution (GBR) 3. Addendum to Governing Body Resolution 4. Grant Assurances 5. FYI Emergency Management Performance Grant Application Checklist 6. Indirect Cost Rate Negotiation Agreement; if applicable* *If claiming indirect costs at a federally -approved rate, then you must provide a copy of your approved indirect cost rate Negotiation Agreement – see Indirect Costs on page 2 of this Guidance. "Application documents are located on the Cal OES website on the Emergency Management Performance Grant page at: http://www.caloes.ca. gov/GrantsManagetnentSite/Pages/Emergency-Management-Performance-Grant.aspx. 55A' -i 25 Optional Excess Funds Statement Form - While developing an application, any excess fiords should Application be identified and returned to Cal OES so that the fiords may be reallocated to other OAs. Components In this case, it will be necessary to complete and submit the Excess Funds Statement Form to your Program Specialist by the application due date. Additional Project Using Excess Funds Form and Additional Project Using Excess Funds Detailed Budget - these two forms are to be used for requesting additional funding; should it become available. Governing The GBR appoints agents authorized to execute any actions necessary Linder this subaward. Body Universal GBRs can be used for up to three years as long as the majority of the original Resolution approving Board members (three out of five) are still currently on the Board. If past GBRs are going to be utilized for present applications, then the OA will still need to submit a copy with (GBR) their application. Universal GBRs are strongly encouraged; this refers to a GBR that does not identify a specific subaward amount, specific subaward years, and does not identify a specific grant program by name. Addendum to Governing Body Resolution For each person or position appointed by the governing body, submit the following information to Cal OES, along with the Resolution, on the applicant's letterhead: • Name • Title • Jurisdiction • E -Mail Address • Street Address, City, & Zip Code • Phone and Fax Numbers) Note: Changes identifying the Authorized Agent can be made if and when necessary. If the Governing Body Resolution identifies the Authorized Agent by name, a new Resolution and corresponding Addendum to the GBR are needed when any changes are made. If the Governing Body Resolution identified the Authorized Agents by position and/or title, changes can be made by only submitting a new Addendum to the GBR. Cal OES will not accept signatures of an Authorized Agent's designee. Official Written For the EMPG Program, all official written correspondence from Cal OES will be mailed to the Correspondence payment mailing address, identified on the Grant Subaward Face Sheet, and addressed to the Authorized Agent who signed the Grant Subaward Face Sheet. Sole Source To be eligible for reimbursement, sole source (or noncompetitive) procurements exceeding the Procurement simplified acquisition threshold (which is established by the Federal Acquisition Regulation at 48 C.F.R. Subpart 2.1 and is currently set at $150,000) require Cal IDES prior written approval. Note: This method of procurement must be approved by your local Purchasing Agent prior to submitting a request for Cal OES approval. A copy of the Purchasing Agent's approval must be included with the Cal OES submission; additional documentation supporting the procurement effort may also be requested for review by Cal OES. [6] 55A-126 Grant The Grant Assurances form lists the requirements to which the OA will be held accountable. Assurances OAs are required to file a new Grant Assurances form with the FYI EMPG application. Failure to comply with any of the Grant Assurances may result in suspension, termination, or reduction of grant funds. The State may suspend or terminate subaward funding, in whole or in part, or other measures may be imposed for any of the following reasons: • Failing to expend funds in a timely manner consistent with the subaward milestones, guidance, and assurances • Failing to comply with the requirements or statutory objectives of federal or state law • Failing to make satisfactory progress toward the goals or objectives set forth in the subaward application • Failing to follow subaward requirements or special conditions • Proposing or implementing substantial plan changes to the extent that, if originally submitted, the application would not have been selected for funding • Failing to submit required reports on time • Providing false certification in the application or other report or document • Failing to adequately manage, monitor, or direct the subaward funding activities of their subrecipients • Failing to submit a Reimbursement Request Before taking action, the State will provide the subrecipient reasonable notice of intent to impose corrective measures and will make every effort to resolve the problem informally. NIMS Adoption In accordance with the Homeland Security Presidential Directive (HSPD)-5, Management of Domestic Incidents, the adoption and implementation of the National Incident Management System (NIMS) is a requirement to receive federal preparedness assistance, through grants, contracts, and other activities. This certifies that the OA will complete the NIMS Implementation Tool, is working on their metrics, and has adopted and implemented NIMS. For further details and/or assistance regarding NIMS-related matters contact Cindy Shipley at gynthia.shiRleyp,caloes.ca.gov, (916) 845-8753. Application Due The application must be received by Cal OES no later than 5:OOpm on July 22,2016*. Date *The completed application packet should be submitted as soon as possible after being vetted by your Cal OES EMPG Program Specialist; however, by no later than July 22, 2016. 55AL) 27 Application The completed original hard copy of the FMFW and all other application components must be Submittal hailed with original signatures, with enough time to be received by Cal DES's Grants Management Section by the application due date. Signatures should be in ink. OAs will also submit an electronic copy of the completed FMFW to their Program Specialist. All application materials should be submitted as soon as possible; however, they must be received by Cal OES Grants Management Section by no later than July 22, 2016, at 5:00pm. Note: To streamline the process, electronically submit the completed FMFW to your EMPG Program Specialist prior to submitting a signed hard copy, in order to identify any corrections or adjustments that may need to be addressed. The electronic copy of the FMFW should be submitted for Cal OES review by no later than June 24, 2016. Work closely with your Program Specialistil to ensure that all application documents are complete and accurate. Further, EMPG Program Specialists (Grant Management Staff) are available to assist in any EMPG-related matters. If the application is received with errors or is incomplete, this will cause a delay in receiving your Notification of Application Approval letter during September 2016. Subrecipients must receive the Notification of Application Approval letter prior to drawing down any grant funds. EMPG Grant Management Staff: Program Inland Region — Patti Delaney: patti.delaneyacalomea.gov, (916) 845-8469 Specialists Coastal Region — Cheryl McCorlde: cheryl.mccorkle acaloes.ca.gov, (916) 845-8415 Southern Region —Christine So: christine.soacaloes.ca.gov, (916) 845-8383 Tribal Nations — Cheryl McCorkle: cheryl.mccorkle@caloes.ca.goy, (916) 845-8415 Mailing Cal OES Address Emergency Management Grants Unit (EMGU) 3650 Schriever Avenue Mather, CA 95655 Approval of Cal OES will notify the OA, in writing, of the approved application, subaward amount, and Application performance period. Subrecipient reimbursements will not be made until all required application components have been approved by the State. Additional In order to reallocate any identified excess, declined, or deobligated funds, we are asking the Funds OAs to submit one-time EMPG eligible projects that they can fully execute in a two -to -five month period, as well as, within the subaward performance period. The Additional Project Using Excess Funds Form and Additional Project Using Excess Funds Detailed Budget should be submitted if an OA is interested in additional funds. 12 If selected for funding, the applicant will be required to submit an FMFW Modification Request and an Amendment Form that will comprehensively integrate the approved excess funds project(s), both financially and programmatically, into their existing, approved FMFW application. These documents need to be submitted within 15 days of being notified; or funds may be re -directed to some other project(s). Additional funding requests may be submitted at any time but preferably during the application phase. 11 Emergency Management Grants Unit contact information: http•//www caloes ca gov/GrantsManagementSrte/Pages/Emergency_ Management-Performance-Grant.aspx under the heading of Regional Assignments. "These forms are located at: http•//www caloes ca gov/GrantsManagementSite/Pages/Emergene)-Management-Perfonnance-Grant.asM, tinder EMPG Forms. 55A A28 Applicable OAs must ensure that local and internal departments are aware of the following laws, Lades & regulations, and guidance doctnnents that apply to this subaward: Regulations . Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended • Title 2 C.F.R. Part 200 • California Emergency Services Act, Chapter 7 of Division 1 of Title 2 of the Government Code — which provides the legal basis for Emergency Management activities in California • Government Code Section 8607 describes the Standardized Emergency Management System • California Supplement to the Federal Program Notice of Funding Opportunity; or, The State Guidance, provided by Cal OES • The Department of Homeland Security (DHS) Notice offunding Opportunity (NOFO) Fiscal Year 2016 Emergency Management Performance Grant Program (EMPG). • FEMA Grant Programs Directorate (GPD) Policies Environmental FEMA is legally required to consider the potential impacts of all grant -funded projects on Planning and environmental resources and historic properties. For the EMPG Program and other preparedness Historic grant programs, this is accomplished through FEMA's Environmental Planning and Historic Preservation Preservation (EHP) review. Any project with the potential to impact natural or biological resources, or historic properties, or involving installation, or that involves Emergency Operation (EHP) Center construction and renovation cannot be initiated until FEMA has completed the required Compliance EHP compliance review. Subrecipients that implement projects prior to receiving EHP approval from FEMA risk de - obligation of fiords. Subrecipients who are proposing communication tower projects are encouraged to complete their Federal Communications Commission (FCC) EHP process prior to preparing their EHP review materials for the Grants Program Directorate (GPD), and to include their FCC EHP materials with their submission to GPD. EMPG Program projects that involve the installation of equipment; ground -disturbing activities; new construction, including communication towers; or modification/renovation of existing buildings or structures must undergo a FEMA EHP review. Note: EHP review requests may require that a confidential California Historical Resources Information System (CHRIS) report be provided to FEMA.13 Furthermore, for those proposed construction or renovation projects that are part of larger projects funded from a non -FEMA source (such as an Emergency Operation Center that is part of a larger proposed public safety complex), a FEMA EHP review must be completed before the larger project is initiated. For these types of projects, Subrecipients must complete the FEMA EHP Screening Form (OMB Number 1660-0115/FEMA Form 024-0-1)14 and submit it, with all supporting documentation, to Cal OES. Note: Subrecipients should submit the FEMA EHP Screening Form for each applicable project as soon as possible. However, to ensure that ample time exists to allow for the FEMA EHP review and approval process, as well as the subsequent execution of the subaward-funded project, all subrecipient EHP-related documents must be received by Cal OES no later than December 31, 2016. Exceptions to this due date will be at the discretion of Cal OES, based on is Information regarding CHRIS can be obtained at: liup://olip.parks.ca.gov/?naee id=1068. t4 The FEMA EHP Screening Form can be located at: https://www.fema.gov/media-library/assets/documents/90195. 55A' -i 29 Environmental exceptional circumstances and/or compelling justification. Planning and Refer to FEMA GPD ERP Policy Guidance FP -108-023-1 (located at: Historichttps•//www fema gov/media-librgM/assets/documents/85376) and 1B 404 (located at: Preservation htt?://www.fema.gov/grants/grant-proerams-directorate-information-bulletins) for further details (EHP) on EHP requirements. The EHP Screening Form can be downloaded at: Compliance, hqs://www.fema.gov/media-library/assets/documents/90195. Continued Forward completed EHP documents electronically to the appropriate Cal OES EMPG Program Specialist. The following activities would not require the submission of the FEMA EHP Screening Form: planning and development of policies or processes; management and administrative or personnel actions; classroom -based training; tabletop and functional exercises; and acquisition of mobile and portable equipment (not involving installation). Projects initiated without proper EHP review will not be funded. Projects that were initiated or completed before an EHP review was concluded, using EMPG Program funds, will be deobligated. To avoid unnecessary delays in starting a project, subrecipients are encouraged to pay close attention to the reporting requirements for an EHP review. Federally Validating Capabilities, Priority Objective, and Performance Measures 15 Mandated To address the EMPG priorities, an objective has been identified and given a set of performance Objective measures and associated reporting requirements to determine how effective subrecipients are in utilizing EMPG Program funding to prepare for all hazards, and advance a whole community Information approach. With these measures, subrecipients must evaluate their progress toward achieving the stated objectives in the quarterly EMPG Performance Report and in compliance with all reporting requirements. Extension Extensions to the initial period of performance identified in the subaward will only be Requests considered through formal, written requests to your EMPG Program Specialist. Upon receipt of extension requests, Cal OES will: (1) verify compliance with performance reporting requirements by confirming that the subrecipient has submitted all necessary performance reports; (2) confirm that the subrecipient has provided sufficient justification for the request; and (3) if applicable, confirm that the subrecipient has demonstrated sufficient progress in past situations where an extension was authorized by Cal OES. To be considered, extension requests must be received no later than 60 days prior to the end of the subrecipients period of performance, and must contain specific and compelling justifications as to why an extension is required. Additionally, period of performance extension requests should be limited to one month in duration. Only under extenuating and extremely compelling circumstances will two-month extensions be considered. Extension Requests beyond two months will not be considered. "The Federally Mandated Objectives can be located in The Department of Homeland Security (DHS) Notice of Funding Opportunity (NOFO) Fiscal Year 2016 Emergency Management Performance Grant Program (EMPG), Appendix A -FY 2016 EMPG Program Priorities, pages 25-30 at: ham•//www fema gov/media-library-data/1455571902574- a84f5alb2f450795a70ccelf5ee7b967/FY 2016 EMPG NOFO FINAL.ndf. [ 10] 55A-130 Validating SubrecipientRequirements: CapabCapabilities ive' 1. All subrecipients are required to develop a Multi -Year (MY) Training and Exercise Plan Obiect(TEP) that incorporates linkages to the NPG core capabilities and update it annually. The Develop and MY -TEP shall encompass the period of January 1, 2017 — December 31, 2018. Maintain Multi- 2. The MY -TEP must be submitted to the Cal OES Exercise Division POCs and EMPG Year TEPs Program Specialist by September 30, 2016 Note: MY-TEPs shall be e-mailed to Cal OES Exercise Division Points of Contact (POCs), with a copy to their EMPG Program Specialist (Grant Management Stafi) no later than September 30th each year. Exercise POCs listed below are available for assistance, if needed, in any exercise -related matters. • Southern Region —Steve Nunez: steve.nunez@caloes.ca.gov • Inland Region— Kevin Leisher: kevin.leisherna,caloes.ca.g_ov • Coastal Region —Kevin Leisher: kevin.leisher@caloes.ca.gov Measurement Method: • Submission to Cal OES of an updated MY -TEP. Reporting: • Subrecipients must report in the EMPG Performance Report their compliance with submitting an updated MY -TEP to Cal OES. Validating 1. All EMPG Program -funded personnel shall participate in no less than three exercises in a Capabilities 12 -month period. This 12 -month period shall be the subaward performance period of Obieetive- July 1, 2016 — June 30, 2017, regardless of time extensions. EMPG Program -funded Exercise personnel are any personnel paid at any percentage with EMPG funding, including M&A staff. There is no specific requirement for level of "participation" in the exercises; so, observation and attendance satisfies the objective. The exercises can be of any type (e.g., discussion -based or operations -based) within the performance period (see h!Ltps://www.fema.gov/media-librgry/assets/documents/32326 . 2. An After Action Report/Improvement Plan (AAR/IP) must be completed by the host of each EMPG-funded exercise and submitted to hseg@fema.dhs.gov, and a copy sent to your EMPG Program Specialist within 90 days after the completion of an exercise. 3. A summary of all collected corrective action items and the tracking of their implementation shall be reported as part of the EMPG quarterly reporting. Additional information and guidance related to AAR/IPs and the National Exercise Program (NEP) Base Plan can be found on the Homeland Security Exercise and Evaluation Program (HSEEP) website at hMs://www.fema.gov/media-library/assets/documents/32326. Note: It is acceptable to submit an Exercise Summary Report for Seminars and Workshops in lieu of a full AAR/IP. E-mail the copies of the AAR/IPs to your EMPG Program Specialist. [11] 55A-131 Validating A summary of all collected corrective action items and a tracking of their implementation shall Capabilities be reported as part of the EMPG quarterly reporting. FEMA encourages the use of the HSEEP. Objective: Exercise Division staff are available for assistance with any exercise -related questions or Exercise, matters. Continued Measurement Method: • Percent of exercises participated by the OA's EMPG-funded personnel. • Submission of an AAR/IP completed by the host of the EMPG-funded exercises. Reporting: • Subrecipients must report quarterly in the EMPG performance report, the percent completed of the exercise requirements for the EMPG-funded personnel. • Subrecipients must submit AAR/IPs for each EMPG-funded exercise, if the exercise is hosted by the subrecipients. AAR/IPs will be completed by the host of the exercise. Participants do not have to individually complete an AAR/IP. Validating Training activities supported with EMPG Program frmds should strategically align to the NPG Capabilities core capability identified in the MY -TEP. To ensure the development of a professional Objective' emergency management workforce, all EMPG Program -funded personnel shall complete 11 training requirements and record proof of completion. EMPG Program -funded personnel are any Training personnel paid at any percentage with EMPG funding; this includes M&A staff fimded by EMPG Program funds. All EMPG Program -funded personnel shall complete the following training requirements by .lune 30, 2017: National Incident Management Svstem (NIMS) Training: IS 100.b Introduction to Incident Command System (ICS) IS 200.b ICS for Single Resources and Initial Action Incident IS 700.a National Incident Management System, An Introduction IS 800.b National Response Framework, An Introduction FEMA Professional Development Series (PDS): IS 120.a Introduction to Exercises IS 230.d Fundamentals of Emergency Management IS 235.c Emergency Planning IS 240.b Leadership and Influence IS 241.b Decision Making and Problem Solving IS 242.b Effective Communication IS 244.b Developing and Managing Volunteers The aforementioned listed courses are available on-line and at no cost from the FEMA Emergency Management Institute (EMI) at the following links: http://trainin .fg ema.gov/IS/NIMS.aspx & hq://training.fema.gov/is/searchis.aMx?search=PDS Note: The "G" course series and classroom -based equivalents can be used as an alternate to satisfy these training requirements. Past completion of the above courses (or qualifying equivalent) is considered acceptable in meeting this requirement. Recorded proof of completion, such as certificates of completion, must exist and be kept on file by the subrecipient and be made available for review upon request. [ 121 55A-132 Validating Measurement Method: Capabilities . Percent of EMPG Program-fimded personnel completing the previously identified 11 Obi ectiye: required training courses. Training, Continued Reporting: System for The System for Award Management (SAM) includes information regarding entities debarred, Award suspended, proposed for debarment, excluded or disqualified under the non -procurement Management common rule, or otherwise declared ineligible from receiving federal contracts, certain (SAM) subcontracts, and certain federal assistance and benefits. Contractor disbarment verification can be obtained from the following website: https://www.sam.gov. Maintenance The use of EMPG funds for maintenance contracts, warranties, repair or replacement costs, and upgrades, licenses, and user fees are allowable wider all active and future grant awards, unless Sustainment otherwise noted. With the exception of maintenance plans purchased incidental to (i.e., at the same time and under the same subaward as) the original purchase of the system or equipment, the period covered by a maintenance agreement or warranty plan must not exceed the period of performance of the specific grant funds used to purchase the plan or warranty, and address the requirements identified in FEMA Information Bulletin (IB) 379. [ 1.31 55A-133 Subrecipients are required to share with Cal OES a MY -TEP that includes an exercise plan and schedule, and a plan for training personnel. Information related to MY-TEPs can be obtained by consulting Cal DES's Exercise Division POC. • Submission of a list of EMPG Program -funded personnel along with the training and dates completed is to be included in the EMPG Program quarterly Performance Reports. Training In order for EMPG Program funds to be utilized for training -related purposes, Subrecipients Feedback must first obtain a Training Feedback Number. Training Feedback Numbers must be obtained Number no later than thirty (30) days prior to the training event. To be considered for a Training Feedback Number, Subrecipients must complete a Training Request Form and submit it electronically to Cal OES. Training Request Forms can be obtained at the following link: https://w3.calema.ca.aov/WebPage/trainreg.nsUTrainRe uq est?OpenI,orm For Training Request Form or Training Feedback Number assistance contact Johnie Garrett at john.garrett@caloes.ca.gov. Subcontracts In accordance with 2 C.F.R. § 200.326 Contract Provisions, any time funds are given to a contractor the subrecipient's contracts must contain the applicable provisions described in Appendix II to 2 C.F.R. Part 200—Contract Provisions for Non -Federal Entity Contracts Under Federal Awards. The OA must monitor and ensure that the contractors are adhering to all applicable federal and state laws. The OA must not make or permit any award (subaward or contract) at any tier to any party that is debarred, suspended, or otherwise excluded from, or ineligible for participation in federal assistance programs, such as the EMPG. Subrecipients must obtain documentation of eligibility prior to any subaward of EMPG funds and be prepared to present supporting documentation to monitors. System for The System for Award Management (SAM) includes information regarding entities debarred, Award suspended, proposed for debarment, excluded or disqualified under the non -procurement Management common rule, or otherwise declared ineligible from receiving federal contracts, certain (SAM) subcontracts, and certain federal assistance and benefits. Contractor disbarment verification can be obtained from the following website: https://www.sam.gov. Maintenance The use of EMPG funds for maintenance contracts, warranties, repair or replacement costs, and upgrades, licenses, and user fees are allowable wider all active and future grant awards, unless Sustainment otherwise noted. With the exception of maintenance plans purchased incidental to (i.e., at the same time and under the same subaward as) the original purchase of the system or equipment, the period covered by a maintenance agreement or warranty plan must not exceed the period of performance of the specific grant funds used to purchase the plan or warranty, and address the requirements identified in FEMA Information Bulletin (IB) 379. [ 1.31 55A-133 Unallowable • Expenditures for weapons systems and ammunition Costs • Costs to support the hiring of sworn officers for the purposes of fulfilling traditional public safety duties or to supplant traditional public safety positions and responsibilities • Activities and projects unrelated to the completion and implementation of the EMPG Program Supplanting Grant funds must be used to supplement existing funds, not replace (supplant) funds that have been appropriated or budgeted for the same purpose through non-federal sources. In the event that supplanting is suspected, the subrecipient will be required to supply documentation demonstrating or certifying that a reduction in non-federal resources occurred for reasons other than the receipt, or expected receipt, of federal funds. Accessibility of The federal Department of Homeland Security (DHS), the DHS Office of Inspector Records General, the Comptroller General of the United States, Cal OES, and any of their authorized representatives, shall have the right of access to any books, documents, papers, or other records which are pertinent to the subaward, in order to make audits, monitoring reviews, examinations, excerpts, and transcripts. The right of access is not limited to the required retention period but shall last as long as the records are retained. Refer to 2 C.F.R. § 200.336 for more information about accessibility of records. Reimbursement The EMPG is a reimbursement grant and therefore no cash advances are permitted under the of Eligible EMPG. The EMPG funds will be disbursed on a reimbursement basis, using the FMFW. Costs Follow the FMFW instructions for Reimbursement Requests16 and submit the signed forms to your EMPG Program Specialist. Payment will be made within 30 days after the Grants Management Section receives a valid and complete Reimbursement Request. It is strongly recommended that copies of all documents adding up to the total of each Reimbursement Request be retained to make verification by monitors and/or auditors easier. Cal OES may require submittal of these documents at any time. Subaward Post award budget, scope, and other modifications must be requested using the Cal OES FMFW Modifications and be signed by the subrecipient's Authorized Agent. A hard copy must be submitted to Cal OES and approved by Cal OES's Grants Management Section, Prior to initiating any revised scope of work or incurring the associated expenditures. The OAs may submit modifications to Cal OES once per quarter during the performance period. Exceptions to allow more modifications during a quarter will be made at Cal OES discretion and will be based on exceptional circumstances and/or compelling justification. Failure to submit modifications and receive approval prior to expenditure could result in a reduction or disallowance of that part of the subaward. Instructions on how to submit a Modification Request are available at the link identified in the footnote. 17 "The Reimbursement Request instructions are located at:1=://www caloes ca ov/GrantsManagementSite/Pages/Emergency-Mana e� ment- Performance-Grant.asnx, under Tutorials. 17 The Modification Request instructions are located at: hitp://www.caloes.ca.gov/Gr tsManagementSite/Pa¢es/Emeraency-Manaeement- Performance-Grant.asnx, under Tutorials. [ 141 55A-134 Performance Subrecipients must prepare and submit Performance Reports to the State for the duration of the Reports subaward performance period, or until all grant activities are completed and the subaward is formally closed by Cal OES. The reports must include the progress made on identified activities, as well as other required information and data. Failure to submit a Performance Report could result in subaward reduction, termination, or suspension. Subrecipients must also complete a Biannual Strategy Implementation Report (BSIR) using the DHS/FEMA Grants Reporting Tool (GRT). To obtain access to the online GRT, log on to their website at www.reporting.odp.dhs.eov. To create a new account, follow the instructions that read, "If you need to register for an account, please click here." For additional assistance with the GRT, contact: Gina Avelar atin�a.avelarkcaloes.ca.gov, (916) 845-8647. Closeout The State will close a subrecipient subaward after: • Receiving a subrecipient Performance Report indicating that all approved work has been completed, and all funds have been disbursed • Completing a review to confirm the accuracy of reported information • Reconciling actual costs to awards, modifications, and payments If the closeout review and reconciliation indicates that the subrecipient: • Is owed additional funds, the State will send the final payment automatically to the subrecipient • Did not use all funds received, the State will issue a deobligation amendment, invoice, or letter to recover unused funds • Did not expend all obligated grant funds, the State will require that a Grant Award Amendment be completed to deobligate the unspent funds and revert them back to the State Records Specific requirements for record retention can be found in 2 C.F. R. § 200.333. In the Grant Retention Closeout Letter, the State will notify the subrecipient of the start of the record retention period for all programmatic and financial subaward-related records. Final Subaward Cal OES will review the OA's final Performance Report for compliance with all subaward Report conditions. The final Performance Report is due to Cal OES by July 14, 2017, (unless the subaward performance period is extended) and will serve as the final subaward report. Audit The OAs, and their subrecipients, must comply with the audit requirements contained in Requirements 2 C.F.R. Part 200 Subpart F—Audit Requirements. Monitoring The State may perform periodic reviews of the OA's subaward performance. The Monitoring Subaward Division is actively conducting monitoring visits, both desk review and on-site, among Performance subrecipients. These reviews may include, but are not limited to: • Comparing actual subaward activities to those approved on the Financial Management Forms Workbook • Confirming compliance with: – Grant Assurances – Information provided on the Performance Reports • Reviewing and monitoring financial and administrative records To provide support and guidance, Grants Management Staff will be intermittently conducting on-site programmatic and financial reviews of OA's EMPG Program -related activities. 55A 5'� 35 55A-136 Attachment D 9: GOVERNOR'S OFFICE OF EMERGENCY SERVICES Standard Assurances For All Cal IDES Federal Grant Programs As the duly authorized representative of the Applicant, I hereby certify that the Applicant has the legal authority to apply for federal assistance and the institutional, managerial and financial capability (including funds sufficient to pay any non-federal share of project cost) to ensure proper planning, management and completion of the project described in this application, within prescribed timelines. I further acknowledge that the Applicant is responsible for reviewing and adhering to all requirements within the: (a) Applicable Federal Regulations (see below); (b) Federal Program Notice of Funding Opportunity (NOFO); (c) California Supplement to the NOFO; and (d) Federal and State Grant Program Guidelines. Federal Regulations Government cost principles, uniform administrative requirements and audit requirements for federal grant programs are set forth in Title 2, Part 200 of the Code of Federal Regulations (CFR) and updates are issued by the Office of Management and Budget (OMB) and can be found at http://www.whitehouse.gov/omb/. Significant state and federal grant award requirements (some of which appear in the documents listed above) are set forth below. The Applicant hereby agrees to comply with the following: 1. Proof of Authority The Applicant will obtain written authorization from the city council, governing board, or authorized body in support of this project. This written authorization must specify that the Applicant and the city council, governing board, or authorized body agree: (a) To provide all matching funds required for the grant project and that any cash match will be appropriated as required. (b) Any liability arising out of the performance of this agreement shall be the responsibility of the Applicant and the city council, governing board, or authorized body. (c) Grant funds shall not be used to supplant expenditures controlled by the city council, governing board, or authorized body. (d) The official executing this agreement is, in fact, authorized to do so. Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 1 of 11 Initials 55A-137 This Proof of Authority must be maintained on file and readily available upon request. 2. Period of Performance The Applicant will initiate work after approval of the award and complete all work within the period of performance specified in the grant. 3. Lobbying and Political Activities As required by Section 1352, Title 31 of the U.S. Code (U.S.C.), for persons entering into a contract, grant, loan, or cooperative agreement from an agency or requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan, the Applicant certifies that: (a) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an 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. (b) 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 this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. (c) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. The Applicant will also comply with provisions of the Hatch Act (5 U.S.C. §§ 1501-1508 and §§ 7324-7328) which limit the political activities of employees whose principal employment activities are funded in whole or in part with federal funds. Finally, the Applicant agrees that federal funds will not be used, directly or indirectly, to support the enactment, repeal, modification or adoption of any law, regulation or policy without the express written approval from the California Governor's Office of Emergency Services (Cal OES) or the federal awarding agency. 4. Debarment and Suspension As required by Executive Orders 12549 and 12689, and 2 CFR § 200.212 and codified in 2 CFR Part 180, Debarment and Suspension, the Applicant will provide protection against waste, fraud, Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 2 of 11 Initials 55A-138 and abuse by debarring or suspending those persons deemed irresponsible in their dealings with the federal government. The Applicant certifies that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; (b) Have not within a three-year period preceding this application been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph (2)(b) of this certification; and (d) Have not within a three-year period preceding this application had one or more public transaction (federal, state, or local) terminated for cause or default. Where the Applicant is unable to certify to any of the statements in this certification, he or she shall attach an explanation to this application. 5. Non -Discrimination and Equal Employment Opportunity The Applicant will comply with all federal statutes relating to non-discrimination. These include, but are not limited to, the following: (a) Title VI of the Civil Rights Act of 1964 (Public Law (P.L.) 88-352 and 42 U.S.C. § 2000d et. seq.) which prohibits discrimination on the basis of race, color, or national origin and requires that recipients of federal financial assistance take reasonable steps to provide meaningful access to persons with limited English proficiency (LEP) to their programs and services; (b) Title IX of the Education Amendments of 1972, (20 U.S.C. §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex in any federally funded educational program or activity; (c) Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794), which prohibits discrimination against those with disabilities or access and functional needs; (d) Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability and requires buildings and structures be accessible to those with disabilities and access and functional needs; (42 U.S.C. §§ 12101-12213.) (e) Age Discrimination Act of 1975, (42 U.S.C. §§ 6101-6107), which prohibits discrimination on the basis of age; (f) Public Health Service Act of 1912 (42 U.S.C. §§ 290 dd-2), relating to confidentiality of patient records regarding substance abuse treatment; (g) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et sec.), relating to nondiscrimination in the sale, rental or financing of housing; Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 3 of 11 Initials 55A-139 (h) Executive Order 11246, which prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identification or national origin; (i) Executive Order 11375, which bans discrimination on the basis of on the basis of race, color, religion, sex, sexual orientation, gender identification, or national origin in hiring and employment in both the United States federal workforce and on the part of government contractors; Q) California Public Contract Code § 10295.3, which prohibits discrimination based on domestic partnerships and those in same sex marriages; (k) Any other nondiscrimination provisions in the specific statute(s) under which application for federal assistance is being made; and (1) The requirements of any other nondiscrimination statute(s) which may apply to the application. In addition to the items listed in (a) through (n), the Applicant will comply with California's Fair Employment and Housing Act (FEHA). FEHA prohibits harassment and discrimination in employment because of ancestry, race, color, religious creed (including religious dress and grooming practices), sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, genetic information, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave (California Government Code §§12940, 12945, 12945.2), military and veteran status, and/or retaliation for protesting illegal discrimination related to one of these categories, or for reporting patient abuse in tax supported institutions. 6. Drug -Free Workplace As required by the Drug -Free Workplace Act of 1988 (41 U.S.C. § 701 et sec.), the Applicant certifies that it will maintain a drug-free workplace and a drug-free awareness program as outlined in the Act. 7. Environmental Standards The Applicant will comply with state and federal environmental standards, which may be prescribed pursuant to the following, as applicable: (a) California Environmental Quality Act (CEQA) (California Public Resources Code §§ 21000- 21177), to include coordination with the city or county planning agency; (b) CEQA Guidelines (California Code of Regulations, Title 14, Division 6, Chapter 3, §§ 15000- 15387); (c) Federal Clean Water Act (CWA) (33 U.S.C. § 1251 at seq.), which establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters; (d) Federal Clean Air Act of 1955 (42 U.S.C. § 7401) which regulates air emissions from stationary and mobile sources; Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 4 of 11 Initials 55A-140 (e) Institution of environmental quality control measures under the National Environmental Policy Act of 1969 (P.L. 91-190); Executive Order 12898 which focuses on the environmental and human health effects of federal actions on minority and low-income populations with the goal of achieving environmental protection for all communities; (f) Executive Order 11514 which sets forth national environmental standards. (g) Executive Order 11738 instituted to assure that each federal agency empowered to enter into contracts for the procurement of goods, materials, or services and each federal agency empowered to extend federal assistance by way of grant, loan, or contract shall undertake such procurement and assistance activities in a manner that will result in effective enforcement of the Clean Air Act and the Federal Water Pollution Control Act Executive Order EO 11990 which requires preservation of wetlands; (h) The Safe Drinking Water Act of 1974, (P.L. 93-523); (i) The Endangered Species Act of 1973, (P.L. 93-205); Q) Wild and Scenic Rivers Act of 1968 (16 U.S.C. § 1271 et seq.) related to protecting components or potential components of the national wild and scenic rivers system. The Applicant shall not be: 1) in violation of any order or resolution promulgated by the State Air Resources Board or an air pollution district; 2) subject to a cease and desist order pursuant to § 13301 of the California Water Code for violation of waste discharge requirements or discharge prohibitions; or 3) determined to be in violation of federal law relating to air or water pollution. 8. Audits For subrecipients expending $750,000 or more in federal grant funds annually, the Applicant will cause to be performed the required financial and compliance audits in accordance with the Single Audit Act Amendments of 1996 and Title 2 of the Code of Federal Regulations, Part 200, Subpart F Audit Requirements. 9. Access to Records In accordance with 2 CFR § 200.336, the Applicant will give the awarding agency, the Comptroller General of the United States and, if appropriate, the state, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to the award. The Applicant will require any subrecipients, contractors, successors, transferees and assignees to acknowledge and agree to comply with this provision. 10. Conflict of Interest The Applicant will establish safeguards to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest, or personal gain. 11. Financial Management False Claims for Payment The Applicant will comply with 31 U.S.0 § 3729 which sets forth that no subgrantee, recipient, or subrecipient shall submit a false claim for payment, reimbursement or advance. Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 5 of 11 Initials 55A-141 12. Reporting - Accountability The Applicant agrees to comply with applicable provisions of the Federal Funding Accountability and Transparency Act (FFATA) (P.L. 109-282), specifically (a) the reporting of subawards obligating $25,000 or more in federal funds and (b) executive compensation data for first-tier subawards. This includes the provisions of FFATA, which includes requirements for executive compensation, and also requirements implementing the Act for the non-federal entity at 2 CFR part 25 Financial Assistance Use of Universal Identifier and Central Contractor Registration and 2 CFR part 170 Reporting Subaward and Executive Compensation Information. 13. Whistleblower Protections The Applicant also must comply with statutory requirements for whistleblower protections at 10 U.S.C. § 2409, 41 U.S.C. § 4712, and 10 U.S.C. § 2324, 41 U.S.C. § 4304 and § 4310. 14. Human Trafficking The Applicant will comply with the requirements of Section 106(g) of the Trafficking Victims Protection Act of 2000, as amended (22 U.S.C. § 7104) which prohibits grant award recipients or a subrecipient from: (1) engaging in trafficking in persons during the period of time that the award is in effect; (2) procuring a commercial sex act during the period of time that the award is in effect; or (3) using forced labor in the performance of the award or subawards under the award. 15. Labor Standards The Applicant will comply with the following federal labor standards: (a) Comply with the provisions of the Davis -Bacon Act (40 U.S.C. §§ 276a to 276a-7), as applicable, and the Copeland Act (40 U.S.C. § 3145 and 18 U.S.C. § 874) and the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327-333), regarding labor standards for federally -assisted construction contracts or subcontracts. (b) Comply with the Federal Fair Labor Standards Act (29 U.S.C. § 201 et al.) as they apply to employees of institutes of higher learning (IHE), hospitals and other non-profit organizations. 16. Worker's Compensation The Applicant must comply with provisions which require every employer to be insured to protect workers who may be injured on the job before commencing performance of the work of this Agreement, as per the workers compensation laws set forth in California Labor Code §§ 3700 et seq. 17. Property -Related If applicable to the type of project funded by this federal award, the Applicant will: (a) Comply with the requirements of Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646) which provide for fair and equitable treatment of persons displaced or whose property is acquired as a result of Federal or federally -assisted programs. These requirements apply to all interests in real property acquired for project purposes regardless of Federal participation in purchase. Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 6 of 11 Initials 55A-142 (b) Comply with flood insurance purchase requirements of Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93-234) which requires subrecipients in a special flood hazard area to participate in the program and to purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or more. (c) Assist the awarding agency in assuring compliance with Section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. § 470), EO 11593 (identification and protection of historic properties), and the Archaeological and Historic Preservation Act of 1974 (16 U.S.C. §469a-1 et sec.). (d) Comply with the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. § 4831 and 24 CFR Part 35) which prohibits the use of lead-based paint in construction or rehabilitation of residence structures. 18. Certifications Applicable Only to Federally -Funded Construction Projects For all construction projects, the Applicant will: (a) Not dispose of, modify the use of, or change the terms of the real property title or other interest in the site and facilities without permission and instructions from the awarding agency. Will record the federal awarding agency directives and will include a covenant in the title of real property acquired in whole or in part with federal assistance funds to assure nondiscrimination during the useful life of the project. (b) Comply with the requirements of the awarding agency with regard to the drafting, review and approval of construction plans and specifications. (c) Provide and maintain competent and adequate engineering supervision at the construction site to ensure that the complete work conforms with the approved plans and specifications and will furnish progressive reports and such other information as may be required by the assistance awarding agency or State. 19. Use of Cellular Device While Driving is Prohibited Applicants are required to comply with California Vehicle Code sections 23123 and 23123.5. These laws prohibit driving motor vehicle while using an electronic wireless communications device to write, send, or read a text -based communication. Drivers are also prohibited from the use of a wireless telephone without hands-free listening and talking, unless to make an emergency call to 911, law enforcement, or similar services. 20. Freedom of Information Act The Applicant acknowledges that all information submitted in the course of applying for funding under this program, or provided in the course of an entity's grant management activities that are under Federal control, is subject to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the California Public Rights Act, California Government Code section 6250 et seq. The Applicant should consider these laws and consult its own State and local laws and regulations regarding the release of information when reporting sensitive matters in the grant application, needs assessment, and strategic planning process. Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 7 of 11 Initials 55A-143 EMERGENCY MANAGEMENT PERFORMANCE GRANT PROGRAM - PROGRAM SPECIFIC ASSURANCES / CERTIFICATIONS 21. Reporting Accusations and Findings of Discrimination If during the past three years the recipient has been accused of discrimination on any basis the recipient must provide a list of all such proceedings, pending or completed, including outcome and copies of settlement agreements to the DHS financial assistance office and the DHS Office of Civil Rights and Civil Liberties (CRCL) by e-mail at crcl@hq.dhs.gov or by mail at U.S. Department of Homeland Security Office for Civil Rights and Civil Liberties Building 410, Mail Stop #0190 Washington, D.C. 20528. In the event any court or administrative agency makes a finding of discrimination against the recipient, or the recipient settles a case or matter alleging such discrimination, recipients must forward a copy of the complaint and findings to the DHS financial assistance office and the CRCL office by e-mail or mail at the addresses listed above. The United States has the right to seek judicial enforcement of these obligations. 21. Acknowledgment of Federal Funding from DHS and Use of DHS Seal, Logo, and Flags All recipients must acknowledge their use of federal funding when issuing statements, press releases, requests for proposals, bid invitations, and other documents describing projects or programs funded in whole or in part with federal funds. All recipients must obtain permission from their financial assistance office, prior to using the DHS seal(s), logos, crests or reproductions of flags or likenesses of DHS agency officials, including use of the United States Coast Guard seal, logo, crests or reproductions of flags or likenesses of Coast Guard officials. 22. Activities Conducted Abroad All recipients must ensure that project activities carried on outside the United States are coordinated as necessary with appropriate government authorities and that appropriate licenses, permits, or approvals are obtained. 23. Best Practices for Collection and Use of Personally Identifiable Information (PII) DHS defines personally identifiable information (PII) as any information that permits the identity of an individual to be directly or indirectly inferred, including any information that is linked or linkable to that individual. All recipients who collect PII are required to have a publically-available privacy policy that describes standards on the usage and maintenance of PII they collect. Award recipients may also find as a useful resource the DHS Privacy Impact Assessments: Privacy Guidance and Privacy template respectively. Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 8 of 11 Initials 55A-144 24. Copyright All recipients must affix the applicable copyright notices of 17 U.S.C. §§ 401 or 402 and an acknowledgement of Government sponsorship (including award number) to any work first produced under federal financial assistance awards. 25. Energy Policy and Conservation Act All recipients must comply with the requirements of 42 U.S.C. § 6201 which contain policies relating to energy efficiency that are defined in the state energy conservation plan issued in compliance with this Act. 26. Federal Debt Status All recipients are required to be non -delinquent in their repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowances, and benefit overpayments. See OMB Circular A-129. 27. Fly America Act of 1974 All Applicants must comply with Preference for U.S. Flag Air Carriers: (air carriers holding certificates under 49 U.S.C. § 41102) for international air transportation of people and property to the extent that such service is available, in accordance with the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. § 40118) and the interpretative guidelines issued by the Comptroller General of the United States in the March 31, 1981, amendment to Comptroller General Decision B-138942. 28. Hotel and Motel Fire Safety Act of 1990 In accordance with Section 6 of the Hotel and Motel Fire Safety Act of 1990, all Applicants must ensure that all conference, meeting, convention, or training space funded in whole or in part with federal funds complies with the fire prevention and control guidelines of the Federal Fire Prevention and Control Act of 1974, as amended, 15 U.S.C. § 2225a. 29. Non -supplanting Requirement All Applicants who receive awards made under programs that prohibit supplanting by law must ensure that federal funds do not replace (supplant) funds that have been budgeted for the same purpose through non-federal sources. 30. Patents and Intellectual Property Rights Unless otherwise provided by law, recipients are subject to the Bayh-Dole Act, Pub. L. No. 96-517, as amended, and codified in 35 U.S.C. § 200 at seq. All recipients are subject to the specific requirements governing the development, reporting, and disposition of rights to inventions and patents resulting from financial assistance awards located at 37 C.F.R. Part 401 and the standard patent rights clause located at 37 C.F.R. § 401.14. 31. SAFECOM All Applicants who receive awards made under programs that provide emergency communication equipment and its related activities must comply with the SAFECOM Guidance for Emergency Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 9 of 11 Initials 55A-145 Communication Grants, including provisions on technical standards that ensure and enhance interoperable communications. 32. Terrorist Financing All Applicants must comply with Executive Order 13224 and U.S. law that prohibit transactions with, and the provisions of resources and support to, individuals and organizations associated with terrorism. It is the legal responsibility of recipients to ensure compliance with the Order and laws. 33. Reporting of Matters Related to Recipient Integrity and Performance If the total value of the Applicant's currently active grants, cooperative agreements, and procurement contracts from all federal assistance office exceeds $10,000,000 for any period of time during the period of performance of this federal award, the Applicant must comply with the requirements set forth in the government -wide Award Term and Condition for Recipient Integrity and Performance Matters located at 2 C.F.R. Part 200, Appendix XII, the full text of which is incorporated here by reference in the terms and conditions of your award. 34. USA Patriot Act of 2001 All recipients must comply with requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), which amends 18 U.S.C. §§ 175-175c. IMPORTANT The purpose of the assurance is to obtain federal and state financial assistance, including any and all federal and state grants, loans, reimbursement, contracts, etc. The Applicant recognizes and agrees that state financial assistance will be extended based on the representations made in this assurance. This assurance is binding on the Applicant, its successors, transferees, assignees, etc. Failure to comply with any of the above assurances may result in suspension, termination, or reduction of grant funds. All appropriate documentation, as outlined above, must be maintained on file by the Applicant and available for Cal OES or public scrutiny upon request. Failure to comply with these requirements may result in suspension of payments under the grant or termination of the grant or both and the subrecipient may be ineligible for award of any future grants if the Cal OES determines that any of the following has occurred: (1) the recipient has made false certification, or (2) violates the certification by failing to carry out the requirements as noted above. All of the language contained within this document must be included in the award documents for all subawards at all tiers, including contracts under grants and cooperative agreements and subcontracts. All recipients are bound the Department of Homeland Security Standard Terms and Conditions 2016, Version 6.0, hereby incorporated by reference, which can be found at: https://www. d hs.gov/sites/defau lt/files/publications/Fiscal %20Year%202016%20D H S%2OGen eral °/u20T erms%20and%20Conditions.pdf Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 10 of 11 Initials 55A-146 The undersigned represents that he/she is authorized by the above named Applicant to enter into this agreement for and on behalf of the said Applicant. Subrecipient: Signature of Authorized Agent: Printed Name of Authorized Agent: Title: Date: Emergency Management Performance Grant Program (EMPG) - 2016 Grant Assurances Page 11 of 11 Initials 55A-147 55A-148 CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: RESOLUTION AUTHORIZING EXECUTION OF PROGRAM SUPPLEMENT AGREEMENTS REQUIRED BY MASTER AGREEMENT NO. 12-5063F15 TO SECURE FEDERAL -AID GRANTFUNDS {STRATEGIC PLAN NO. 6, 1G) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2n' Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution authorizing the Executive Director of the Public Works Agency to execute all program supplement agreements required by Master Agreement No. 12-5063F15 for Federal -Aid Projects with the State of California Department of Transportation. DISCUSSION On October 18, 2016, the City Council approved a new Master Agreement for Federal -Aid Projects with the California Department of Transportation (Caltrans), replacing the previous Master Agreement which had been in place since 2007. Master Agreements are generally in place for a period of approximately ten years. While the updated Master Agreement details new grantee general requirements, subsequent Program Supplements allow the City to secure specific grants by identifying precise grant amounts, their purpose, and timeline for completion. The Program Supplements are time -sensitive and require execution by the City as the last step to securing the grant and thereafter receive the funds. To facilitate this process, staff is requesting approval of a resolution authorizing the Executive Director of the Public Works Agency to execute all Program Supplements under the new Master Agreement No. 12-5063F15. This is a standard method used by local agencies to efficiently secure and receive funds, and to avoid any chance of lapse. The prior Master Agreement had a similar authorizing resolution, and staff recommends continuing that practice. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy G (develop and implement the City's Capital Improvement Program in coordination with the Community Investment and Deferred Maintenance Plans). 55B-1 Resolution for Program Supplement Agreements For Revised Master Agreement No. 12-5063F15 February 7, 2017 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact associated with this action. Executive Director Public Works Agency FM/EGW Exhibit: 1. Resolution 55B-2 jmf 1124/17 RESOLUTION NO. 2017 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE EXECUTIVE DIRECTOR OF THE PUBLIC WORKS AGENCY TO EXECUTE ALL PROGRAM SUPPLEMENT AGREEMENTS REQUIRED BY REVISED MASTER AGREEMENT NO. 12-5063F15 WITH THE CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR FEDERAL -AID PROJECTS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1, The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. On October 18, 2016, the City Council approved the Revised Administering Agency -State Master Agreement No. 12-5063F15 for Federal -Aid Projects with the California Department of Transportation (Caltrans), which provides for the City's reimbursement of federally funded transportation projects. B. The Revised Master Agreement No. 12-5063F15 incorporates various changes in regulations and policies. C. Under the Revised Master Agreement No. 12-5063F15, project -specific Program Supplements are issued, and these Program Supplements constitute the contractual basis for Caltrans to reimburse the City for federally funded transportation projects. Section 2. The City Council hereby authorizes the Executive Director of the Public Works Agency to execute all Program Supplement Agreements required by Revised Master Agreement No. 12-5063F15. Section 3. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this 7th day of February, 2017. Miguel A. Pulido Mayor EXHIBIT 1 Resolution No, 2017 -XXX Page 1 of 2 55B-3 jmf 1/24/17 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Jilin- M. Funk Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2017 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on February 7, 2017. Clerk of the Council City of Santa Ana ` Resolution No. 2017 -XXX Page 2 of 2 55B-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: ANNUAL REVIEW AND APPOINTMENT OF REGIONAL BOARD REPRESENTATIVES (STRATEGIC PLAN NO. 5, 1) Y MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1®i Reading ❑ Ordinance on 2nd Reading [] Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER A/7 1. Review the regional board appointment list and appoint members and alternates to serve as representatives to various outside agencies through December 2017 (or specific term where noted); and, 2. Adopt a resolution designating and appointing a representative to the Orange County Fire Authority's Board of Directors; and, 3. Direct the Clerk of the Council to update and post the Fair Political Practices Commission (FPPC) Form 806 (Agency Report of Public Official Appointments) on the City's website. DISCUSSION The Mayor and City Council represent the City's interest in regional issues by serving on a number of regional boards which make public policy decisions in the areas of transportation, water resources, fire services, and government facilities. The City Council reviews regional board appointees on an annual basis and can make necessary changes. Attached is a list of current representatives, meeting dates, compensation and other pertinent information on each board (Exhibit 1). For discussion purposes, the following is a list of regional boards and appointing authority. ■ Metropolitan Water District The Metropolitan Water District of Southern California is a regional wholesaler that delivers water to 26 member public agencies — 14 cities, 11 municipal water districts, one county water authority — which in turn provides water to more than 19 million people in Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura counties. Metropolitan is governed by a 38 -member board of directors who represent 65A-1 Annual Review and Appointment of Regional Board Representatives December 20, 2016 Page,, of '3 . their respective member agencies ensuring each member agency is part of the governance of Metropolitan. A board member is appointed by the majority of the City Council (member does not have to be elected official). ■ Newport Bay Watershed Executive Committee The Newport Bay Watershed Executive Committee (Executive Committee is the successor to the Upper Newport Bay Sediment Control Executive Committee established through a cooperative agreement in the early 1980s. The Executive Committee was formed by amendment of the cooperative agreement in 1999, and now includes in its interests the impairments of Newport Bay caused by nutrients, toxics, and pathogens in addition to sediment, as well as related environmental enhancements. Members of the Executive Committee are elected, appointed, or executive level managers, with one member from each of the signatories to the agreement (the County member, however, represents both the County and the Orange County Flood Control District). The Executive Committee provides strategic direction for environmental enhancement programs in the watershed, advocacy of these programs to the elected/appointed boards of the member organizations, and a forum for discussion of watershed environmental issues. A board member and alternate is appointed by the majority of the City Council. ■ Orange County Sanitation District (OCSD) Board The Orange County Sanitation District is a wastewater treatment facility that serves Orange County, California. It consists of two operating plants, referred to as Plant No. 1 located in Fountain Valley and Plant No. 2 located in Huntington Beach. It is the third largest wastewater treatment facility west of the Mississippi River. OCSD and the Orange County Water District were awarded the Stockholm Industry Water Award in 2008 for pioneering work to develop with Trojan Technologies the Groundwater Replenishment System, the world's largest water purification plant for groundwater recharge. A board member and alternate are appointed by the majority of the City Council. ■ Orange County Fire Authority (OCFA) The Orange County Fire Authority Board of Directors has twenty-five members and sets policy according to its adopted Rules of Procedures. Twenty-three of the members represent partner cities, and two members represent the county unincorporated area. A board member is appointed by the majority of the City Council. Selection must be authorized by resolution. ■ Transportation System Improvement Authorities - Orange & Tustin (TSTA) Formed in 1990, City of Santa Ana approved a joint authority with the Cities of Orange and Tustin to improve areas of mutual interests. 65A-2 Annual Review and Appointment of Regional Board Representatives December 20, 2016 Page3 of 3 A board member and alternate are appointed by the majority of the City Council for each of the two (2) Authorities. ■ Southern California Association of Governments (SCAG) District #16 An association representing six (6) counties (Imperial, Los Angeles, Orange, Riverside, San Bernardino and Ventura) that works to develop regional plans for transportation, growth management, housing development, air quality and other issues of regional significance. A board member and alternate is appointed by the majority of the City Council. ■ Transportation Corridor Agencies (TCA) — Foothill/Eastern Joint Powers Authority formed in 1986 to design, finance, construct and operate the three Orange County toll roads. The Agency is in the process of merging all toll roads under the direction of one board. A board member and alternate are appointed by the majority of the City Council. ■ Orange County Vector Control: The Orange County Vector Control Board is an independent special district dedicated to controlling rats, mosquitoes, and other disease carrying and public health pests. Activities also include surveillance of vectors and vector-borne diseases, public education services and identification of public health pests. Each Trustee is appointed by the city they represent to serve a two or four year term. A board member and alternate is appointed by the majority of the City Council. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #1 (Establish a comprehensive community engagement initiative to expand access to information and create opportunities for stakeholders to play an active role in discussing public policy and setting priorities). FISCAL IMPACT There is no fiscal impact associated with this action. Maria D`. Huizar Clerk of the Council Exhibits: 1. Resolution for OCFA Appointment & List of Current Regional Board Members 65A-3 65A-4 RESOLUTION NO. 2016-xxxx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA, REPEALING RESOLUTION NO. 2016-058 AND DESIGNATING AND APPOINTING ITS REPRESENTATIVE TO THE ORANGE COUNTY FIRE AUTHORITY'S BOARD OF DIRECTORS WHEREAS, the City, as a "member" of the Orange County Fire Authority Joint Powers Authority (JPA) is entitled to appoint a representative director ("Director") to the Orange County Fire Authority's Board of Directors; and, WHEREAS, each member agency, by resolution of its governing body, shall designate and appoint one representative to act as its Director on the Authority Board of Directors, except the County whose Board of Supervisors shall appoint a representative to act as its Directors; and, WHEREAS, the Director shall be a current elected member of the governing body; and, WHEREAS, the Director shall hold office until the selection of a successor by the appointing body; and, WHEREAS, the Director is to serve at the pleasure of his or her appointing body and may be removed at any time, with or without cause, at the sole discretion of that appointing body; and, WHEREAS, any vacancy shall be filled in the same manner as the original appointment of a Director. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Santa Ana, California, does hereby: 1. Repeal Resolution no. 2016-058 in its entirety and 2. Designate and appoint member as a Director to the Orange County Fire Authority Board of Directors. Resolution No. 2016-xxx 65A-5 Page 1 of 2 PASSED, APPROVED, AND ADOPTED this day of 2016. Miguel A. Pulido, Mayor APPROVED AS TO FORM: la Sonia R. Carvalho, City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2016-XXXX to be the original resolution adopted by the City Council of the City of Santa Ana on December 20, 2016. Date: Resolution No. 2016-xxx Page 2 of 2 Clerk of the Council, City of Santa Ana 65A-6 CITY OF SANTA ANA 2016 REGIONAL BOARD MEMBERS '': ;" (Bf�AF2D CURRANT i?c�SITIQN ' ME�'�INGS CC"11111(I,PEN,SATION / , � Metropolitan Board Mtgs 2nd Tues of mo. @ Mileage Water District Michele Rep. 12:30 with Cmte mtgs at 8 a.m. and reimbursement Board MWD Martinez also Cmte Mt s 4th Tues all day from MWD Newport Bay Michele Quarterly the 3rd Wednesday from None Watershed Martinez 1:30-3:00 at Irvine Ranch Water Executive (resigned effective Rep. District, 15600 Sand Canyon Committee December 20, 2016) Avenue, Irvine, CA 92618 OC Sanitation Sal Tinajero Rep. Meets once a month on the 4th $212.50/Mtg. Max District * Wednesday at 6 p.m. 6/Mo. Plus mileage OC Sanitation David Alt. Meets once a month on the 4th $212.50/Mtg. Max District * Benavides Wednesda at 6 .m. 6/Mo. Plus mileage OC Vector Control Meets on 3r Thursday at 3 pm. $100/Mtg. District Rep. 2 ear a ointment Orange County None Council of Michele Meets once a month on the 4th Governments Martinez Rep. Thursday at 11 a.m. Board of Directors OCCOG * Orange County Council of 3rd Thursday of the month from 10:30 Governments Alt. a.m. to 12:00 p.m. at the OCTA Board of Directors Headquarters in Conference Room (OCCOG) " Orange County Angelica $100 permeeting; Fire Authority Rep. Every Month at 6:30 p.m. max OFCA " Amezcua S.A./Orange Vicente Rep. T.S.I.A. Sarmiento S.A./Orange Alt, T.S.I.A. S.A./Tustin Vicente Rep. Meets quarterly, 4th Thurs. at 4 p.m. T.S.I.A. Sarmiento S.A./Tustin Alt. Meets quarterly, 4th Thurs. at 4 p.m. T.S.I.A. Southern $120/Mtg. Max California Michele District 16 - Meets 1 st Thursday of 6/Mo. Plus mileage from City Hall Association of Martinez Rep each month, 10 a.m. — 1:30 p.m. Governments SCAG * Michele $120/Mtg. Max Transportation Martinez Meets on the 2nd Thursday at 9:30 6/Mo.; Ad Hoc Corridor Agencies g (resigned effective Rep. Cmts $120 plus (TCA) * December 20, am Mileage 2016 Transportation Meets on the 2nd Thursday at 9:30 Corridor Agencies Alt. TCA * am 65A-7 65A-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JANUARY 17, 2017 TITLE: ANNUAL REVIEW OF COUNCIL COMMITTEES AND APPOINTEES (STRATEGIC PLAN NO. 5, 1) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: V.27W".T071W ❑ As Recommended ❑ As Amended ❑ Ordinance on tat Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TOC 44V FILE NUMBER 99 1. Review current list of established Council Committees and make any changes, as needed. 2. Review current list of appointees to Council Committees and make changes, as needed. DISCUSSION On January 22, 2013 the City Council adopted Resolution No. 2013-002 to restructure the Council Committees and establish five standing committees. The City Council reviews the committees on an annual basis and also members are selected at the time. The following are the committees and members for 2016: FYS i Y+* xr Al" "i 31 5�F 1, `3i M Quarterly Development and Transportation •Benavides Jan., April, July, Oct. Committee *Sarmiento* 1st Thursday, 5:00 p.m. • Amezcua* Bi -Annual Meeting Code of Ethics and Conduct .Tinajero Spring and Fall, Thursday, 5:30 p.m. Parks, Recreation, Education & . Amezcua Quarterly Youth (PREY) .Reyna Jan., April, July, Oct. &Joint Santa Ana Unified School District Council Committee** . Tinajero* n 4 Monday, 5:30 p.m. Public Safety/ Every other Month Neighborhood Improvement /Code ' • Benavides* Jan., Mar., May, July, Sept., Nov. Enforcement (NICE) � Tinajero m 4 Tuesday, 5:30 p.m. Every other Month Finance, Economic Development . Sarmiento Jan., Mar., May, July, Sept., Nov. and Technology + Martinez* 2"a Monday, 5:30 p.m. 6513-1 Annual Review City Council Committees January 17, 2017 Page 2 �^0`gwr `cs �ra,�� .,�€ Quarterly Legislative Committee • Sarmiento' Mar., June, Sept., Dec. . Amezcua 4'h Wednesday, 12 noon Note. *Chairperson **Joint SAUSD Council Committee to meet twice a year in April & October The City Council recommended periodic review by the City Manager and the City Council to ensure that the diverse issues and challenges facing the City are adequately addressed. In the past, the Council established single purpose citizen committees, such as the Charter Review Committee, to address topical issues. The review of social service programs for Community Development Block Grant funds is also an example of a task that could be performed by a citizen committee appointed on an annual basis. Council has the discretion of revising the standing committees and/or recommending changes to appointees. The 2017 calendar of standing meetings for all committees is attached for your information. The calendar will be posted on the City's website to better inform the public of upcoming meetings. City Council Committee Meetings are held at City Hall, Ross Annex, Room 1600, 20 Civic Center Plaza, Santa Ana at various times and as posted on the agenda. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 Community Health, Livability, Engagement & Sustainability, Objective #1 (Establish a comprehensive community engagement initiative to expand access to information and create opportunities for stakeholders to play an active role in discussing public policy and setting priorities). FISCAL IMPACT There is no fiscal impact associated with this action. `14' zD Maria D. D. Huizar, Clerk of the Council Attachment: 2017 Calendar of Regular Meetings 65B-2 9 s^ a.a t a f: oz s� O N llINIA emMINEIII Y) N w 1 L� W IINee� ie1111 INNIIII pt 1 ■ INe111 I mill: ic ININIC F o mill INIIIII 11 F s ^ 111d SII IR ~ 1111111 � S D N ^ p J D < � S R p V W N 0 mi111 ll: O N llINIA emMINEIII Y) N w 1 L� W IINee� ie1111 INNIIII pt 1 ■ INe111 I mill: ic ININIC F o mill INIIIII 11 IN 111 111d SII IR ~ 1111111 milill P YI N N IMM1111 1111111 Milli V W N N mi111 ll: e'11611 W A V 111111 1�1 llINIA emMINEIII 1 I 1 1 IINee� ie1111 INNIIII pt 1 ■ INe111 I mill: ic ININIC �I mill INIIIII 11 IN 111 111d SII IR 1111111 milill IMM1111 1111111 Milli e� llINIA emMINEIII 1 I 1 1 IINee� ie1111 INNIIII pt 1 ■ INe111 WINEIMMIN ic ININIC �I mill 11 IN 111 111d 119111 IR 1111111 milill IMM1111 1111111 Milli e� emMINEIII 1 IINee� ie1111 pt 1 ■ INe111 ic ININIC �I mill 11 IN 111 111d 119111 cl' 1111111 milill 1111111 Milli e� emMINEIII 1 ie1111 IN°III 1 INe111 � ININIC 11 '>e 111d 119111 cl' milill 1111111 Milli e� emMINEIII ie1111 IN°III INe111 � ININIC '>e 111d 119111 milill Milli mi111 ll: e'11611 11111: 111111 11111C INIC semImmill �e i1� � e� I 111e 1111111 111111 e� ie1111 IN°III INe111 '>e 111d mi111 ll: 11111: INIC i1� � e1eIM1111 1111111 111111 Lt m I REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: DECEMBER 20, 2016 TITLE: COMMUNITY ENHANCEMENT PROGRAM GRANT AGREEMENTS AND APPROPRIATION ADJUSTMENT FOR FISCAL YEAR 2016-2017 {STRATEGIC PLAN NOS. 2,2A; 2,213; 5,4B; 5,5C; 5,6C } CITY MANAGE RECOMMENDED ACTION CLERIC OF COUNCIL USE ONLY: 029a*71#WN As Recommended �] As Amended C� Ordinance on 1®t Reading (3 Ordinance on 2nd Reading Implementing Resolution El Set Public Hearing For CONTINUED TO FILE NUMBER 020/ 1. Approve one of the funding options for the 2016-2017 Community Enhancement Program Grant in the amount of $500,000: OPTIONS: A. Award funds to the eight highest ranked nonprofit programs for the requested funding amount, for a total of $485,643, and allocate $14,357 for administrative costs (Staff recommended action); or B. Award funds to the nine highest ranked nonprofit programs, with a of 7.5% reduction of the requested funding amount, for a total of $500,000. 2. Direct the City Attorney to prepare and authorize the City Manager and Clerk of the Council to execute agreements with nonprofit agencies awarded Community Enhancement Program Grants, subject to non -substantive changes approved by the City Manager and City Attorney. 3. Approve and Appropriation Adjustment to appropriate $500,000 from Fund Balance, resulting from Fiscal Year 2015-16 (General Fund) for the City's Community Enhancement Grant Program. DISCUSSION The Community Enhancement Program Grant (CEPG) will allocate funding to nonprofit organizations for public services that support health, human and/or quality of life services to Santa Ana residents. On September 20, 2016 the City Council participated in a work study session for CEPG and directed staff to move forward with the application process. 65C-1 Community Enhancement Program Grants December 20, 2016 Page 2 Applications for CEPG were released on October 14, 2016. Nonprofits with a 501(c)3 status were eligible to apply, a funding cap was set at $125,000 per program, and programs were required to align with a City of Santa Ana Strategic Plan Goal. A total of 67 applications were received by the November 7, 2016 application due date. Based on an internal staff review, 56 applications were deemed responsive and were rated by a panel consisting of representatives from the Rancho Santiago Community College District, Santa Ana Unified School District, Community Redevelopment and Housing Commission, Arts and Culture Commission, and the City of Santa Planning Agency Neighborhood Initiatives Division. The rating results are listed in the CEPG Rankings and Recommendations (Exhibit 1). Nonprofit program summaries are provided in Exhibit 2. Marketing efforts to promote the availability of funds included a Nixle Press Release reaching 14,146 emails, a mailing to 320 Santa Ana nonprofit organizations, and an email to 154 nonprofit organization representatives. Additionally a dedicated website was setup to provide CEPG information and the online application submission system. During the application process Staff conducted two grant workshops to provide grant information and answer questions from interested nonprofits. A total of 90 representatives from 75 nonprofits attended the workshops. Option A: Award funds to the eight (8) highest ranked nonprofit programs. This option allows nonprofit organizations to receive the full funding requested in the grant application. It also provides $14,357 for City costs associated with administering the grant program. If this option is selected, nonprofits will be required to adhere to the service levels stated in the application. Option B: Award funds to the nine (9) highest ranked nonprofit programs. This option reduces funding by 7.5% of the funding requested in the grant application. It does not provide funding for the City to administer the grant program. If this option is selected, service levels in the application may be reasonably adjusted at the sole discretion of the City, proportionate to the level of funding awarded. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #2 — Youth, Education, Recreation, Objective #2 (Expand youth programming), Strategy A (Focus resources on quality youth engagement, enrichment and education programs through community centers, libraries and after- school programs during out-of-school hours.), Strategy B (Expand the youth sports program so that youth recreational opportunities are established year-round.), and Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (Support neighborhood vitality and livability), Strategy B (Implement new Neighborhood Improvement Initiatives focusing on residential areas that have been adversely affected by disinvestment and decline, Objective #5 (Promote a strong arts and culture infrastructure) Strategy C (Generate public and private support and resources to strengthen, expand and stabilize funding for the arts.), Objective #6 (Focus projects and programs on improving the health and wellness of all residents) Strategy C (Integrate a variety of health and wellness programs into existing programming at each of the city's community/recreation centers). 65C-2 Community Enhancement December 20, 2016 Page 3 FISCAL IMPACT Program Grants Approval of the Appropriation Adjustment will designate $500,000 from Fiscal Year 2015-16 General Fund ending fund balance to the following account: Funding Source General Fund Non -Departmental Robert C. Cortee, Deputy City Manager City Manager's Office JG/sb Anticipated oenditure in FY Account No. Amount 2016-2017 01105015 -various $ 350,000 2017-2018 01105015 -various $ 150,000 TOTAL: $500,000 APPROVED AS TO FUNDS AND ACCOUNTS: Fr nc co Gutierrez IJW Executive Director Finance and Management Services Agency Exhibits: 1. Community Enhancement Program Grant Recommendations 2. Nonprofit Program Summaries 3. Nonprofit Agreements 65C-3 65C-4 C44ZI CIMU NINCI _UI7c1ICO1 U&IVIMITH191tI1 Option A: Award #148. Fund at full requested amount; remaining funds used for administrative costs. Option $: Award #1 - #9. Reduce fill requested funding amount by 7.5%. 6.TS 65C-6 Community Enhancement Program Grant Nonprofit Program Summaries KidWorks CDC - New KidWorks Center and After School Program Expansion Rank: 1 Strategic Plan Alignment: Goal 2 Objective 2a Score: 87.8% Funding Request: $ 125,000 KidWorks will open of a new satellite site in the Santa Anita neighborhood as part of a new City of Santa Ana sponsored affordable housing development. It will also significantly expand the after school and enrichment programming the main center. 1) New Santa Anita KidWorks Center: services include STEAM lessons, homework help, tutoring, college and career readiness for parents and students including college tours and financial aid assistance, a community fair, and a beautification day; 2) Double KidWorks Main Center: support for programming for the significant and much needed expansion of the main KidWorks site would double current enrollment. TKO Youth Foundation -TKO BOXING CLUB Rank: 2 Score: 86.4% Strategic Plan Alignment: *Goal 2 Objective 2b Funding Request: $ 20,000 TKO provides a low-cost, after-school program for at -risk youths as an alternative to gang membership. To challenge these youth to achieve their potential both academically and athletically. Delhi Center - Cultural Arts Program Rank: 3 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 86.2% Funding Request: $ 125,000 The Cultural Arts Program provides a way to achieve cultural equity, access and inclusion in cultural arts by providing children and youth with visual and performing arts classes including dance, music, art, theater, photography, videography, and mural art. Classes are provided during non -school hours, including after school, evenings, and summer. The program also provides an avenue for young people to practice their artistic skills through on-the-job training and leadership development. RAYA (Rise Above Your Ambitions) Foundation - Rise Above Sports Program Rank: 4 Strategic Plan Alignment: *Goal 2 Objective 2b Score: 83.2% Funding Request: $ 21,261 The RAYA Foundation will offer the Rise Above Sports program. This program will consist of the following: 1) 8 week teen (14-18) basketball league, 2) 7 week boys (9-14) basketball league, 3) 7 week girls (9-14) basketball league, 4) 2 basketball skill devekopment/lifeskills clinics, and 5) 1 youth track meet for youth 12 - 14 years. Child Creativity Lab -The City as Play Rank: 5 Strategic Plan Alignment: Goal 5 Objective 4b Score: 82.6% Funding Request: $ 45,000 The City as Play is an innovative public -engagement and community -visioning program that uses art -making as its medium. Participants will practice creative skills and problem -solving in community design workshops that help them become active participants in improving their neighborhoods. Facilitators will host 25 community design workshops that will be located in community gathering spots of divested neighborhoods in coordination with local groups to empower residents to re -think their neighborhood through a hands-on, purposeful, and fun design activity well- known for bringing people with little knowledge of how their city works, deep into the process. Pg. 1 ��l�l��■ Serve the People - Increasing Access to Vision and Eye Care: Mobile Vision Clinic Rank: 6 Strategic Plan Alignment: Goal 5 Objective 6c Score: 82.6% Funding Request: $ 100,000 Serve The People -Community Health Center (STP) is expanding a comprehensive vision care program for individuals experiencing homelessness, low-income working -age adults, low-income senior citizens, and school-age children in Santa Ana. Funding will be a catalyst to launch a mobile vision care unit in its first year of operations which will lead to a sustainable program of optometry and ophthalmology for low-income residents throughout Santa Ana. The program will develop 13 new equitable health access points at 4 community/senior centers, 8 schools, and the Courtyard homeless shelter. STP will provide vision exams with corrective lenses at no cost to the patient. Makara Center for the Arts - Lending Library & Arts Center Rank: 7 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 82% Funding Request: $ 38,000 The Makara Lending Library & Arts Center will strengthen the Santa Ana arts infrastructure by providing residents with improved access to arts education and professional development resources. Social and Environmental Entrepreneurs - The Bicycle Tree - Wrench and Ride Rank: 8 Strategic Plan Alignment: Goal 2 Objective 2a Score: 82% Funding Request: $ 11,382 Wrench and Ride is an eight-week youth program in which participants learn about repair, riding bicycles, bicycle safety, and the many benefits of bicycling. Participants receive a used bike, repair and refurbish the bike, learn about bike safety and ride several miles around the city, experiencing safe and practical cycling practices, guided by a certified bike safety instructor. At the end of the program, graduates get to take their bike home, along with a helmet, lock, and lights. The program is offered at no charge to participants, who are typically recruited through partnerships with Santa Ana organizations, including Latino Health Access, Kid Works, and the Santa Ana Unified School District. Centro Cultural de Mexico en el Condado de Orange - Fandangos in the Schools Rank: 9 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 81.8% Funding Request: $ 54,926 Musicians and dancers from EI Centro Cultural de Mexico introduced over 2000 K -8th grade students and their parents to the Fandango musical tradition of southern Veracruz, Mexico at the OC Educationlar Arts Academy. A series of workshops culminated in a Fandango organized by students and parents. CEPG funding will build on this pilot project by expanding the program to Santa Ana public schools, especially those in underserved areas by: 1)incorporating Centro's other music, dance, and art instruction, and 2) laying the organizational groundwork to make this program a permanent liaison between the Centro and Santa Ana's school system. Charles W Bowers Museum Corporation - Capacity building support for the Bowers Museum's community focused programming Rank: 10 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 81.4% Funding Request: $ 84,192 Bowers is committed to expanding access to and funding for the arts in Santa Ana. To achieve this, we will expand access to the museum for low-income residents of Santa Ana by reaching students at Title 1 schools through our Museum School Partnership and by expanding our weekly free admission for Santa Ana residents to include special exhibits as well as general museum access. Further, we will create a strategic plan that focuses on sustainable funding and expanded community access. Pg. 2 65C-8 Newsong Community Church of Orange County - theMIXAcademy Rank: 11 Strategic Plan Alignment: *Goal 2 Objective 2b Score: 81.4% Funding Request: $ 125,000 theMlX Academy offers a safe and empowering learning center for the whole family in the Willard neighborhood, with 20 types of classes, seminars, and workshops for every age. Fresh, healthy dinner are served before classes at no cost. theMlX academy is a launching pad for dreams and creativityfor any age, and designs customized goals for each family member. Empowering and raising up leaders in our own community is a crucial focus and metric for us. This grant will allow us to expand programs, serve more residents, and train local leaders to do the same. Santa Ana Pony Baseball -Jerome Park Youth Baseball Rank: 12 Strategic Plan Alignment: *Goal 2 Objective 2b Score: 81.4% Funding Request: $ 39,700 Santa Ana Pony Baseball will provide a free youth baseball program to kids aged 5 to 8. The season will take place at Jerome Park during the Fall months of August, September, October, and November. The Jerome Park league will consist of the following: 10 Teams, 10 Coaches, 110 youth athletes. The grant money will be used to provide uniforms, equipment, coach development, field reservations, and field maintenance all at no charge to the parents. Taller San Jose Hope Builders - Healthcare Training For Disadvantaged Santa Ana Youth Rank: 13 Strategic Plan Alignment: Goal 2 Objective 4a Score: 79.8% Funding Request: $ 125,000 Hope Builders seeks funding from the City of Santa Ana to expand its existing Healthcare training program by 30%, and in partnership with St. Joseph Health, pilot a new training program to prepare youth as Fitness Professionals. The three healthcare programs will enroll 80 Santa Ana youth, ages 18 to 28, in Administrative Billing & Coding, Clinical Medical Assisting or Fitness Professional instruction. Hope Builders bridges the gap between young adults who face many barriers to employment and employers who need skilled, reliable workers. Orange County Children's Therapeutic Arts Center - After -School Neighborhood Initiative Music Prog. Rank: 14 Strategic Plan Alignment: Goal 2 Objective 2a Score: 79.2% Funding Request: $ 125,000 OCCTAC's After -School Neighborhood Initiative Music Program will provide free musical instruction to 250 Santa Ana youth across 5 Neighborhood Community Centers strategically located in the neighborhood areas where families do not have access to instrumental music education, and/or have transportation challenges. This wonderful Music Program will teach Santa Ana youth how to play a string or woodwind instrument, engage in musical ensembles, and perform in community events throughout the year! Pure Game - Year -Round Youth Recreation Rank: 15 Strategic Plan Alignment: *Goal 2 Objective 2b Score: 79% Funding Request: $ 35,400 Through inclusive sports play plus character education, Pure Game (PG) inspires underserved children to be engaged, self-confident, ethical, resilient, compassionate, and capable of constructive problem solving. PG will provide programming to achieve this at four Kid Works sites and one Boys & Girls Club site in Neighborhood Initiative areas. PG will enroll an average of 60 participants at each site, for a total of 600 unique participants. Play consists of a very simplified form of soccer on a reduced -size field, with portable goals. Our young Field Champions (teacher -mentors) will lead play. Pg. 3 65C-9 The Cambodian Family - Healthy Changes Program (HCP) Rank: 16 Strategic Plan Alignment: Goal 5 Objective 6d Score: 79% Funding Request: $ 125,000 The goal of our HCP is to increase access of underserved, low-income, limited -English -proficient residents of Santa Ana to culturally and linguistically appropriate health care/preventive health services and resources through health education, health screenings, health care accessing services, and healthy living activities, thereby reducing health disparities in our Santa Ana community. Participants will have (1) increased health knowledge and awareness, (2) increased preventative health screenings, (3) improved access to culturally and linguistically tailored preventive health and health care services, and (4) increased health -promoting behaviors. The Wooden Floor for Youth Movement - The Wooden Floor Expansion to the Depot at Santiago Rank: 17 Strategic Plan Alignment: Goal 2 Objective 2a Score: 79% Funding Request: $ 75,000 The Wooden Floor (TWF) transforms the lives of youth in low-income communities through the power of dance and access to higher education. TWF will expand Year -Round Programs in arts, education, and social services into a new annex in the Depot at Santiago, an affordable housing development. The 3,000 square -foot extension to our current campus as a dance studio, education center, and counseling/family resource center in the Depot at Santiago will serve 100 additional TWF year-round students plus 70 additional resident -families for TWF Family Services beginning in September 2017. Charitable Ventures of Orange County - Madison Park Neighborhood Association Rank: 18 Strategic Plan Alignment: Goal 5 Objective 6d Score: 78.5% Funding Request: $ 48,940 Getting Residents Engaged in Exercise & Nutrition (GREEN), is a place -based wellness and learning center, located at Madison Elementary, that provides health, education, community, and leadership opportunities for residents. CEPG will support GREEN activities focused on community health, livability, engagement, and sustainability including: health and wellness workshops and programming; the annual health fair,walk-a-than, and cultural festival; our ALMA (Aspire, Learn, Mentor, Achieve) Science Academy and supplemental academic programming; and adult education, focused on civic engagement, for parents. Boys & Girls Club of Central Orange Coast (BGCCOC) - College Bound - Santa Ana Rank: 19 Strategic Plan Alignment: Goal 2 Objective 2a Score: 78.4% Funding Request: $ 125,000 College Bound provides low-income/at-risk Santa Ana teen students with quality academic instruction, mentoring, and support to help them graduate high school on time, prepare for university, community college, trade, military or technical school, and set career goals for the future. Advisors help youth to: 1) envision college as an attainable goal; 2) create a road map by setting academic/ career goals with a plan for achievement; and 3) develop the needed skills for college and/or a career. &Z 65C-10 Community Health Initiative of Orange County (CHI OC) - Community Health Access Program Rank: 20 Score: 78.4% Strategic Plan Alignment: Goal 5 Objective 6c Funding Request: $ 60,000 The Community Health Initiative of Orange County (CHI OC) serves the city of Santa Ana by helping families navigate an increasingly complex healthcare landscape in a culturally and linguistically appropriate manner. With over a decade of experience, CHI OC provides Outreach, Enrollment and case management services to vulnerable populations. Through our care coordination model, we strive is to ensure that families we serve not only acquire, but also retain and utilize their services effectively. Community Engagement, Inc. - Paredes de Liberacion/Walls of Liberation Rank: 21 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 78.2% Funding Request: $ 125,000 Through Project "Paredes de Liberacion" (Walls of Liberation), Community Engagement and Santa Ana Unified School District will collaborate with Santa Ana College (SAC) and community partners to develop murals that will contribute to Santa Ana's rich cultural heritage through arts education. The project will serve an estimated 600 high school students, ages 14 -19 years old, who will receive articulated college credit through a semester long college level mural class that will be open to all district students and housed at Santa Ana High School (SANS). The project includes SAC faculty who specialize in teaching mural design as well as a team of cross disciplinary arts teachers at SANS including visual arts, theatre, and film. The project is supported by SAC adult students who will serve as interns, mentors, and volunteers to support both the mural project and the high school students' artistic development. The murals will be developed on site at Santa Ana High School and installed in various locations within the city of Santa Ana. Arts Orange County - Dia del Nino Rank: 22 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 77.2% Funding Request: $ 10,000 Arts Orange County seeks support for its sixth annual "Dia del Nino' program that consists of a full-day festival, and several pre -event workshops that will culminate in the exhibition and presentation of work during the main festival. The festival will feature approximately 35 interactive arts workshops and performances by professional guest artists, local arts organizations, schools, and amateur artists. "Dia del Nino' celebrates the artistic richness and cultural heritage of OC's Latino community through engaging arts experiences, connects underserved residents to local arts organizations, introduces new artistic disciplines, and fosters creativity and exploration among children and families. Charitable Ventures of OC - Santa Ana Building Healthy Communities Thriving Neighborhood Initiative Rank: 23 Strategic Plan Alignment: Goal 5 Objective 4b Score: 77% Funding Request: $ 134,760 The Thriving Neighborhoods Initiative (TNI) will transform 1-3 neighborhoods in Central Santa Ana via the implementation of three major program areas: 1) Thriving Economies - cultivate accessible and sustainable economic development opportunities for low-income residents & small businesses, 2) Thriving Homes - educate residents about tenant rights, municipal code requirements, and housing opportunities, 3)Thriving Spaces - activate existing and new open spaces with programmed recreational opportunities for youth and families, such as exercise, fitness, arts & culture classes, community gardening workshops, walking groups, and bike rides in park poor neighborhoods. Pg. 5 65C-11 www.fit2bekids.org - Fit 'n FUN Club Rank: 24 Score: 76.2% Strategic Plan Alignment: *Goal 2 Objective 2b Funding Request: $ 50,000 Fit2beKids' (F2BK) Fit'n FUN Club is a free, year-round program serving low-income, high-risk, and special needs families. Our mission is addressing health and wellness at the family -unit level. The program incorporates nutrition education and guided individual and group sports/physical fitness activities for children ages 3-16 years, while maximizing parent participation to build a holistic approach to family health. 12 -weeks enrichment courses include: 1) Together We Run —Across the Nation, 2) GO NUTS! —A Nutrition Competition, 3) WWOW Sports (Wonderful World of Wacky Sports), and 4) Paying it Forward. National Alliance on Mental Illness (NAMI), Orange County - Mental Health Education and Outreach Rank: 25 Strategic Plan Alignment: Goal 5 Objective 6c Score: 75.8% Funding Request: $ 56,500 NAMI Orange County will provide mental health signature education programs and outreach at multiple community/recreation centers throughout Santa Ana. The education programs are designed to empower families and their loved ones in their mental health journeys. Each program will provide practical tools for understanding, insight, care, communication, empathy, stigma reduction and advocacy. These programs provide needed and lasting benefits during each of the stages of emotional response to crisis: dealing with catastrophic events, learning to cope and moving into advocacy. Centennial Heritage Museum - Creating Employment Opportunities for Youth through History & Nature Rank: 26 Score: 75.6% Strategic Plan Alignment: Goal 2 Objective 4b Funding Request: $ 123,536 Heritage Museum of Orange County will collaborate with Santa Ana Unified School district to develop three after- school youth employment programs aimed at 10 students at Lorin Griset Academy, REACH Academy, and Cesar E. Chavez High School. The students at these particular schools are on the academic cusp and are vulnerable to become high school drop outs. The three programs focus on different areas of museum operations, hence developing three unique opportunities on site for placed based learning: history docent's interns, farm interns, and conservation and habitat restoration interns. The three programs emphasize various aspects of the museum. Orange County Children's Therapeutic Arts Center - Multi Arts Resources, Training, and Support Rank: 27 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 75.6% Funding Request: $ 125,000 SMARTS will provide year-long intensive professional development, technical assistance and fund development to bring all Santa Ana Arts constituencies together. Individual artists and Arts organizations will be provided with ongoing professional development in important areas, including: grant writing and budgeting, fund development, program development, marketing strategies, community engagement and community collaboration. Joint and individual program design and funding appeals including creative place making, arts, dance and music events and community engagement will be identified and developed for all participant voices within the appeals. E 65C-12 Academy of International Dance - Healthy Lifestyle Rank: 28 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 75.2% Funding Request: $ 20,000 The Academy of International Dance's Healthy Lifestyle program educates and motivates families about eating nutritious meals, exercising regularly and learning about health topics through dance. Parents of the academy will be given excellent health and nutrition seminars yearly. Students will attend a special dance acting class that will empower them to take care of their bodies and minds. In order to fully embed what the parents and students learned in class or the seminars, they will be given illustrated reading material to study and short quizzes pertaining to the information they receive. Community Engagement, Inc. - Una Vuelta a la Manana/Once Around the Block Rank: 29 Strategic Plan Alignment: Goal 5 Objective 4b Score: 74.8% Funding Request: $ 125,000 Una Vuelta a la Manzana/Once Around the Block is a program in which residents in our 64 Santa Ana neighborhoods will come together over 6 months to organize and throw 64 neighborhood block parties across the City of Santa Ana. These community events will be a mechanism to inspire community building since engagements like block parties have been shown to provides a casual and relaxed setting where residents can meet, play, eat and hopefully find similarities that bring them closer together. Friends of the Santa Ana Public Library - Children's Patio Enhancement Rank: 30 Strategic Plan Alignment: Goal 2 Objective 2a Score: 74.2% Funding Request: $ 90,000 This project will provide 3,000 sq. ft. of additional space to serve Santa Ana children at the Santa Ana Public Library. The project proposes to expand the Children's Patio west of the Main Library. Performance, craft, and reading spaces will be supplemented with raised bed gardens where children may learn about sustainable living and drought tolerant gardening. The result will be a long-term improvement in educational programming available to children in Santa Ana. Orange County Fair Housing Council, Inc. - Tenants' Repair and Deduct Short -Term Loan Program Rank: 31 Strategic Plan Alignment: Goal 5 Objective 4b Score: 74% Funding Request: $ 40,000 California Civil Code Section 1942 provides a remedy to some tenants in need of habitability -related repairs to their unit. The code allows tenants to make repairs deemed necessary to maintain habitability and deduct the cost from the following month's rent. This remedy is typically referred to as "repair and deduct" Before tenants utilize this remedy they have to give the landlord a reasonable opportunity to make such repairs. Additionally, a tenant is limited to use of the remedy to twice in any 12 -month period and to repairs that can be made for no more than one month's rent. Legal services to tenants who might experience retaliation by their landlord will also be provided. Big Brothers Big Sisters of Orange County - High School Bigs-School-Based Mentoring Program Rank: 32 Strategic Plan Alignment: Goal 2 Objective 2a Score: 73.8% Funding Request: $ 25,000 High School Bigs is an after school, site-based mentoring program that works with principals, teachers, and counselors to identify students that need additional academic, social and behavioral support, and high school students that are eager, willing and capable to serve as academic tutors and peer mentors to the elementary students. The program helps to bring one-to-one tutoring and mentoring to youth that may not have families engaged enough to refer their children to our traditional community-based model of mentoring. Pg. 7 65C-13 Casa de la Familia - LaTEENa Power Curriculum Rank: 33 Strategic Plan Alignment: Goal 2 Objective 2a Score: 73.5% Funding Request: $ 24,000 The LaTEENa Power Curriculum (LPC) provides a 9 -week curriculum that encourages Latina adolescents to explore 7 strengths they have inherited from their Latin American culture, and to use those strengths to overcome difficult life circumstances and transform a negative self-image into empowering self -acceptance and self-determination. The 7 LaTEENa Strengths are as follows: Espiritu Creativo/Creative Spirit, The Aguantadora's Passionate Determination, The Comadre's Networking Ability, The Diplomatica's Discretion, The Atrevida's Courage, The Malabarista's Balance, and The Reina's Confidence and Strength. Orange County Community Housing Corp - SteppingUP Rank: 34 Strategic Plan Alignment: Goal 2 Objective 2a Score: 73.6% Funding Request: $ 50,000 SteppingUP is a free after-school program that works to educate and prepare at -risk individuals about the benefits of staying in school, graduating on time and gaining a higher education that will assist in breaking the generational cycle of poverty. SteppingUP's intensive year-round program has a 100% graduation rate and is 99% successful in moving students to higher education. Participants are provided weekly advising sessions, leadership training, STEM related education, reading comprehension and analysis, like -skills training and educational excursions. The Illumination Foundation - Children's Resource Center Rank: 35 Strategic Plan Alignment: Goal 2 Objective 2a Score: 73.2% Funding Request: $ 125,000 The Children's Resource Center (CRC) is a quality care environment that provides homeless and at -risk children with the services necessary to overcome the effects of poverty and break the cycle of generational homelessness. Programs include free early childhood education, tutoring, nutritional meal service, counseling, art and drama workshops, after-school academic assistance, parenting classes, recreation, and speech and language therapy. The CRC has also become a community hub: Engaged parents lead neighborhood meetings to discuss neighborhood issues. Vietnamese Community of Orange County, Inc. - Draw Out the Stigma Rank: 36 Strategic Plan Alignment: *Goal 5 Objective 5c Score: 73% Funding Request: $ 55,000 Social stigma remains a serious barrier to receipt of mental health services by Latina and Asian adults; fear of cultural stereotypes and misperceptions about mental health diagnoses and treatment stop those in need from accessing services. VNCCC proposes creating a positive program for promoting mental health by using the arts to Draw out the Stigma through the self-expression using multiple art forms, dialogue to generate meaningful conversations, and art exhibitions to promote reflection and awareness in order to reduce the stigma and discrimination of mental illnesses. Rise Above Your Ambitions (RAYA) Foundation - Coaching Access for Success in Academics (CASA) Rank: 37 Strategic Plan Alignment: Goal 2 Objective 2a Score: 72.6% Funding Request: $ 2,075 RAYA Foundation will offer two (2) "Coaching Access for Success in Academics (CASA)" workshops as well two tours of higher education institutions for 80 unduplicated parents/guardians of its junior high and high school participants and members of the general Santa Ana public. Workshops will be held at Santa Ana Recreation or Community Centers, based upon availability or the Raya home and will be approximately 2 hours in length. Workshops will be held weeknight evenings and/or weekends as needed to make them convenient and accessible for parents/guardians. E 65C-14 The Cambodian Family - Plan Ahead Youth Program (PAPP) Rank: 38 Strategic Plan Alignment: Goal 2 Objective 2a Score: 72.2% Funding Request: $ 125,000 The Plan Ahead Youth Program (PAPP) is to help young people develop their visions for the future and attain the skills to turn their visions into reality. PAYP will provide services to 200 participants who are low-income youth and parents in Santa Ana in order for them to thrive in the areas of academics, physical and mental health, leadership skills, and career opportunities. Youth and their parents will participate in activities that are organized year-round at our community center in Santa Ana, an average of 6-8 hours per week, around four well -integrated institutes: Academic, Leadership, Career, and Health and a parent strategy. Human Options, Inc. -Safe Options for Seniors Rank: 39 Strategic Plan Alignment: Goal 5 Objective 6e Score: 71.8% Funding Request: $ 37,000 The Safe Options for Seniors (SOS) program aims to offer prevention and intervention services to Santa Ana residents 50 years of age and older, who are at risk or who are victims of elder abuse or late life family violence. In 2014, over 9,000 reports of elder and dependent adult abuse were reported. The program will consist of new educational presentations and groups focused on assisting victims of elder abuse and late life family violence (Financial Scams, Senior Empowerment, AJourney to Empowerment, and Wellness Group). Services will be provided in the Santa Ana community and in Santa Ana Senior Center(s), and a therapist will be able to provide one-on-one services. Gay and Lesbian Community Services Center of Orange County - Invest in Santa Ana LGBTQ Youth Rank: 40 Strategic Plan Alignment: Goal 5 Objective 6d Score: 70.8% Funding Request: $ 63,079 Invest in LGBTQ Youth, provides school-based and after-school programming that will create positive school climates and promote health, wellness and community engagement for lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ) youth in Santa Ana. Funding will allow us to provide programming in 6 Santa Ana schools, as well as after-school and summer components. We have an agreement with SAUSD as a partner on the School Climate Committee and requests from school administrators to provide these much needed services. Orange County Council Boy Scouts of America - ScoutReach Youth Development & Leadership Training Rank: 41 Strategic Plan Alignment: Goal 2 Objective 2a Score: 70.8% Funding Request: $ 124,067 We aim to expand ScoutReach to an additional 227 youth in a hands-on character building, life skills and leadership program. Our program involves parents and mentors and provides problem -solving, team -building and outdoor activities. Studies on Scouting show benefits, such as gains in grades, attendance and engagement in school as well as life-long impacts. A three year study from Tufts University shows a positive correlation of Scouting's role in positive youth development in the areas of competence, confidence, connections, caring relationships and character development. ME 65C-15 Charitable Ventures of OC - Santa Ana Grants for Blocks- Connect to Council Rank: 42 Strategic Plan Alignment: Goal 5 Objective 4b Score: 70.4% Funding Request: $ 65,880 Connect to Council (C2C) proposes to work with residents, community organizations, local schools, community partners and the City to strengthen neighborhood groups, create safe environments, improve health and wellness, and create opportunities for neighbors to help neighbors to increase leadership skills and the capacity of neighborhood associations to more effectively solve problems and fully utilize resources that they do not know are available to help improve neighborhood conditions and community health and to access fresh produce and the arts. Healthy Smiles for Kids of Orange County - Smiles X -Press Teledentistry Program Rank: 43 Strategic Plan Alignment: Goal 5 Objective 6c Score: 70.2% Funding Request: $ 125,000 The Smiles X -Press Teledentistry program is an innovative service that seeks to ensure that every child in Orange County has access to oral health care by utilizing telehealth technology to provide dental care in underserved communities. Healthy Smiles has begun Implementing this program in elementary and preschools, including within Santa Ana Unified School District (SAUSD). With funding from the city of Santa Ana, Healthy Smiles can offer the Smile X -Press program at an additional five schools, providing thousands of children with a Virtual Dental Home. Legal Aid Society of Orange County - Health Consumer Action Center Rank: 44 Strategic Plan Alignment: Goal 5 Objective 6d Score: 69.2% Funding Request: $ 110,579 LASOC will provide Santa Ana residents with holistic legal services to improve their health and wellness by working with the California Endowment and creating medical legal partnerships with other nonprofits to assist Santa Ana residents who are not able to access health coverage or navigate through the health care system due to systemic barriers and problems. LASOC will provide outreach, legal representation, health retention and utilization assistance, consultation, advocacy, information, education, referrals, advice and counsel, and one-on-one legal assistance where Santa Ana residents have direct access to in-depth legal representation in the areas of dissolution of marriage, paternity, child support, child custody, landlord -tenant, bankruptcy, employment law, health, tax, permanent orders, and immigration relief. Young Women's Christian Assoc of No. Orange Co - Neighborhood Link to Breast Cancer Screening Rank: 45 Strategic Plan Alignment: Goal 5 Objective 6c Score: 68.6% Funding Request: $ 35,000 The purpose of our program is to provide quality breast cancer screening and breast self-awareness to 4,000 at -risk, multicultural, uninsured women, 40 years or older, in their own neighborhoods, in their own languages, and in a manner consistent with their cultural belief. We work with two mobile digital mammogram vendors who provide digital state of the art mammograms and navigate women to diagnostic care. Should cancer be detected, we partner with local breast cancer centers that provide surgery and follow up care. Pg. 10 65C-16 Pure Game - Pure Game After -School Programming Rank: 46 Strategic Plan Alignment: Goal 2 Objective 2a Score: 67.2% Funding Request: $ 47,400 Through inclusive sports play plus character education, Pure Game (PG) inspires underserved children to be engaged, self-confident, ethical, resilient, compassionate, and capable of constructive problem solving. With a CEP grant, PG will provide programming to achieve this, after school and during summer break, at 14 schools in Neighborhood Initiative areas. Participants will have fun, exercise, and grow in character, becoming better able to treat others respectfully, value themselves, think positively about their own futures, and be less vulnerable to gang recruitment. Veterans Legal Institute - Homeless Veterans Free Legal Clinics Rank: 47 Strategic Plan Alignment: Goal 1 Objective 1g Score: 65.8% Funding Request: $ 106,720 The Homeless Veteran Free Legal Clinics are designed to reach out to vulnerable veterans who have unique and significant barriers to self sufficiency. VLI reaches out with mobile free clinics to known homeless veteran hotspots. For Santa Ana, that includes the homeless quarter at the Santa Ana Civic Center. These "Military Monday' clinics are invitations for free legal advice and counsel, community conversation, and presentations on expungements, landlord/tenant, bankruptcy, and other civil issues. Homeless veterans can come to a relaxed setting at the Starbucks right next to the quarter, drink coffee, and meet with an expanded staff who all have military backgrounds. Council on Aging - Southern California - ReConnect Early Intervention Services for Older Adults Rank: 48 Strategic Plan Alignment: Goal 5 Objective 6e Score: 65% Funding Request: $ 84,246 ReConnect is a countywide program that provides short-term culturally and linguistically competent services (1 to 12 months) to improve the psychosocial health and quality of life of vulnerable, low-income older adults by engaging them in healthy life patterns and activities. The Reconnect program delivers services in 6 different including Hispanic, Vietnamese, Korean, Chinese, and Filipino seniors. The proposed program would expand programming at the senior centers in the city of Santa Ana. With the goal of increasing the number of enriching activities related to art, health, and culture. Court Appointed Special Advocate - Mentor -Advocate Program Rank: 49 Strategic Plan Alignment: Goal 2 Objective 2a Score: 63.8% Funding Request: $ 50,000 Court Appointed Special Advocates (CASA) of Orange County's Mentor -Advocate Program has been in operation since 1985. CASA recruits, screens and trains community volunteers to equip them to mentor and advocate for a segment of our most highly victimized population - children in the dependency system. Our court-appointed CASA volunteers are trained and supported to connect with the youth, to identify needs and concerns, to address ongoing crises that erupt in these challenging cases and to advocate for their resolution. Young Women Christian Association of North Orange County - YWSafe Self Defense Program Rank: 50 Strategic Plan Alignment: Goal 1 Objective 2d Score: 63.4% Funding Request: $ 45,440 We will educate and train women about self-defense who use public transportation to work or school. This bi-lingual (English/Spanish) program teaches students about self-defense awareness and preparation. We discuss sexual assault definitions of the law so the student identifies potentially dangerous situations will have knowledge of her options. Training skills include risk avoidance, body language, self-defense and the understanding of the impact and effects of sexual assault. Pg. 11 65C-17 Project Access, Inc. - "Pathways out of Poverty After -School and Summer STEAM Program" Rank: 51 Score: 62.8% Strategic Plan Alignment: Goal 2 Objective 2a Funding Request: $ 38,980 Project Access seeks grant funds from the city of Santa Ana to expand its 10 -week Summer STEM pilot program into a year-round program titled "Pathways out of Poverty After -School and Summer STEAM Program". Grant funds will support the critical program costs of a part-time STEAM Instructor position, STEAM/STEM learning materials, and focused STEAM field trips for youth. The program will expand access during the key after-school hours for low-income youth, and also provide youth with expanded learning opportunities, field trips, and hands-on learning. Hands Together -A Center for Children and Families - Morning Garden -Healthy Living Rank: 52 Score: 62.4% Strategic Plan Alignment: Goal 5 Objective 6d Funding Request: $ 33,000 Morning Garden is a classroom educational and parenting program for low income mom's who have preschool aged children living in the downtown Santa Ana 92701 area. An advanced early education preschool is provided by Hands Together enabling their parent to attend the morning classes. Community School of the Arts Foundation - Arts Education for Students with disabilities Rank: 53 Score: 62.2% Strategic Plan Alignment: Goal 2 Objective 2a Funding Request: $ 123,130 Provide arts education, including music, theater, creative arts, and dance classes at no cost to an often marginalized population: students 5-22 years old identified with moderate to severe disabilities. Our program will address the needs of low-income, special needs children at nine SAUSD schools, by providing a safe and supportive learning environment. Public Health Foundation Enterprises - Little by Little School Readiness Program Rank: 54 Score: 62.2% Strategic Plan Alignment: Goal 5 Objective 41b Funding Request: $ 124,842 The Little by Little School Readiness Program (LBL) is an evidence -based early literacy program that strives to create a stimulating home environment, foster literacy and improve school readiness for underserved children. Community Enhancement Program funds will be utilized to begin a pilot LBL site in Orange County and will provide LBL services to nearly 5,000 women and children at Public Health Foundation Enterprises' (PHFE) "WIC Main Street". Vietnamese Community of Orange County, Inc. - Santa Ana Pathway to Wellness Rank: 55 Strategic Plan Alignment: Goal 5 Objective 6e Score: 61.6% Funding Request: $ 75,000 VNCOC will create a group program for older adults. "The Santa Ana Pathway to Wellness" to improve the health and wellness of all seniors by increasing their nutrition knowledge and skill at preparing low cost healthy meals, establishing a habit of daily walking with less fear, and decreasing isolation via group activity with neighbors. The program includes two components: nutrition classes and a walking program. Young Mens Christian Association (YMCA) of Orange County - Soccer and Aquatics Program Rank: 56 Strategic Plan Alignment: Goal 5 Objective 6d Score: 53.4% Funding Request: $ 50,000 The Santa Ana Family YMCA answers the community need by providing soccer and swim programs at our 2.5 acre Sports and Aquatics Center. Pg. 12 65C-18 Pg. 13 65C-19 65C-20 NOTE: Same agreement will be used for nonprofit organizations approved for the CEPG program. COMMUNITY ENHANCEMENT PROGRAM GRANT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND This Community Enhancement Program Grant Agreement ("Agreement') is made and entered this __,, day of 2017, by and between the City of Santa Aria, a charter City and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"), and Organization Name , a California section 1501(c)(3) Nonprofit Organization ("Grantee"), collectively referred to herein as the "Parties". RECITALS: A. On October 14, 2016, applications for the Community Enhancement Program Grant (CEPG) were released. B. On December 6, 2016, the City Council approved the recommended Fiscal Year 2016-2017 CEPG Grants, thereby allocating $500,000 to nonprofit organizations for public services that support health, human and/or quality of life services to Santa Ana residents. C. On December 6, 2016, the City Council reviewed all applicants and determined that Grantee is hereby awarded a CEPG based on its Application for its public services ("Project') attached hereto and incorporated herein as Exhibit A, and authorized the execution of this Agreement. D. In undertaking the performance pursuant to this Agreement, Grantee represents that it is skilled and knowledgeable in the public services arena and that any Project performed hereunder will be performed in compliance with such standards as may reasonably be expected from a service provider. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. Grant Activities. Grantee agrees: 1.1. To perform the activities described in the Grant Application and Timeline submitted to City for consideration dated , 2017, a copy of which is attached as Exhibit A and incorporated into this Agreement as if set out in full, Service levels in the application may be reasonably adjusted at the sole discretion of the City, proportionate to the level of funding awarded. 1.2. To submit two reports (each, a 'Report'), one at the midway point of the Project, and one at the end of the Project, as reasonably determined by the City. The Reports shall include, at a minimum, the total number of Santa Ana residents served, a description of activities and accomplishments, and financial documentation to support expenditures, such as true copies of invoices, receipts, canceled checks, bank statements, credit card statements, payroll records, contracts or documentation pertaining to costs for subcontractors, and/or other documentation supporting and evidencing how the CEPG funds were expended during the applicable reporting period. If necessary, the City, in its sole discretion, may request additional reports and/or information from the Grantee regarding the Project. No personally identifiable information shall be included in any of the Reports, except where specifically requested. The Reports shall be in a format that is reasonably acceptable to City. City may request additional information as City, in its sole discretion, determines necessary to monitor performance of this Agreement, City shall have the right to use any Reports submitted by Grantee, or any portion thereof, for any reason. du�r I21 1.3. To facilitate site visits, conference calls and audits of Grantee, as reasonably requested by City. 2, Funding. 2.1. Subject to Grantee's performance of all required actions under this Agreement, City shall provide funding in two disbursements, the first to be issued after execution of the Agreement, and the second at the midway point of the Project, after the City's review and approval of the midway Report described in section 1.2 of this Agreement, in an amount not to exceed Thousand Dollars ($ ) ("Grant Amount" or "Grant"). 2.2.. Appropriate performance of the Grantee will be determined by City in its sole discretion. City reserves the right to cease funding after each disbursement. 2.3. City represents that there is no correlation or connection between its selection of organizations for grant awards and an organization's business relationship or potential business relationship with City. 3. Term. This Agreement shall be effective upon signature by both Parties and shall expire one year from the date first written above, unless terminated earlier in accordance with this Agreement. The term of this Agreement may be extended upon a writing executed by the City Manager and City Attorney. 4. Termination. 4.1. City may immediately terminate this Agreement upon one or more of the following: 4.1.1. Grantee's violation of any federal, state or local law or regulation. 4.1.2. Grantee's breach of any of the terms or conditions of this Agreement, including the Application and Timeline, or any unapproved deviation from said documents which has not been cured within 30 days of written notice of such breach. 4.2. In the event the Agreement is terminated under Section 4.1, City reserves the right to require Grantee to refund any or all grant funds awarded to Grantee under this Agreement, and Grantee agrees to refund to City any or all grant funds awarded under this Agreement. 5. Limitation of Liability. 5.1, IN NO EVENT SHALL CITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXPENSES FOR ANY NEGLIGENCE, BREACH OF CONTRACT OR ANY OTHER ACT ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIVITIES COVERED HEREUNDER 5.2. Section 5 and Section 6 do not limit Grantee's rights, including its ability to seek recovery, against anyone other than City, Its directors, officers, employees, agents, successors and assigns. 6. Indemnification. 6.1. Grantee shall defend, indemnify, protect and hold harmless the City, or its elected and appointed officers, employees, members or agents from and against all claims for damages, liability, cost and expense (including without limitation attorney's fees) arising out of or alleged 65C-22 by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Grantee, and Grantee's employees, subcontractors or other persons, agencies or firms for whom Grantee is legally responsible in connection with the execution of the work covered by this Agreement. Grantee shall have no duty to indemnify or hold harmless the City if claims, damages, liability, costs, expenses (including without limitation, attorney's fees) arise from the sole negligence or sole willful misconduct of the City subsequent to declaration by the Grantee. Grantee's obligations shall survive the termination of this Agreement. 6.2. Grantee agrees to hereby fully release and forever discharge the City from any and all claims, demands, damages, losses, and liabilities (hereinafter collectively referred to as "claims"), which are or may be related to or in any way connected with the negligence or willful misconduct of its officers, officials, employees, or agents in connection with the creation, painting, performance or installation of the Project hereunder. U. Grantee further agrees that City may in good faith and on reasonable terms settle any such claims and that City's right to indemnification shall extend to any such settlement, provided City has given notice of such claim and its intent to settle. City's right to indemnification is in addition to, and may be exercised independently of, any remedy held by City under this Agreement, at law or in equity. The indemnity provision set forth in this Agreement shall survive the termination or expiration of this Agreement indefinitely. 7.Insurance. 7.1. Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: 7.1.2. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit C upon execution of this Agreement and shall be approved in form by the City Attorney. 7.1.3. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such Insurance shall include coverage for owned, hired and non -owned automobiles. 7.1.4. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, Is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to 65C-23 obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 7.1.5. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 In the aggregate. 7.2. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: 7.2.1. Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. 7.2.2. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. 7.2.3. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. 7.3. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 8. General Provisions. 8.1. Grantee shall acquire prior written permission from City for any use of the City name or logo in association with its Project. 8.2, If any parts of this Agreement are held to be Invalid or unenforceable, the remaining parts of the Agreement shall continue to be valid and enforceable. 8.3. This Agreement shall be construed and the rights and obligations of the Parties shall be determined in accordance with the laws of the State of California, with venue of any action arising out of this Agreement in Orange County, California. 8.4. Grantee shall comply with all governmental requirements which may now or in the future become applicable to its activities under this Agreement. 8.5. This Agreement, including Exhibit A, Application, and any amendments or schedules hereto, contain the full understanding and agreement of the Parties with respect to its subject matter, and no waiver, alteration or modification of any of the provisions to this Agreement shall be binding unless in writing and signed by an authorized officer of both Parties. 8.6. No waiver by either party or any breach, default, or series of breaches or defaults, and no failure, refusal, or neglect of either party to exercise any right, power, or option given to it under this Agreement or to insist upon strict compliance with the terms of this Agreement shall constitute a waiver of these provisions with respect to any subsequent breach or waiver by B! 65C-24 either party or its right at any time thereafter to require exact and strict compliance with provisions of this Agreement. 8.7. Any notice or other communication required or permitted to be made or given by either party pursuant to this Agreement will be in writing and will be deemed to have been duly given: (i) five business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine; or (iii) when delivered if delivered personally or sent by express courier service. All notices to City shall include a reference to the Project title. All notices will be sent to the other party at its address as set forth below or at such other address as such party will have specified in a notice given in accordance with this section: Grantee: City: City of Santa Ana Clerk of the Council (M-30) 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 FAX (714) 647-6956 M. This Agreement is subject to all applicable local, State and Federal laws. 8.9. Grantee agrees to comply with all applicable equal opportunity and affirmative action laws as appropriate, Grantee shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Grantee affirms that it is an equal opportunity employer (if applicable) and shall comply with all applicable federal, state and local laws and regulations. 8,10. Any funds provided under this Agreement that are not expended, obligated or otherwise committed by the termination or expiration of this Agreement shall be immediately returned to City. 8.11. Grantee shall maintain all pertinent financial and accounting records pertaining to this Agreement in accordance with generally accepted accounting principles and other procedures reasonably specified by City. Upon termination or expiration of this Agreement or request by City, Grantee shall provide, at its expense, copies of all financial and accounting records produced by it arising out of this Agreement. 8.12. Grantee shall allow audits, compliance or special reviews and inspections, including on- site inspection, with or without prior notice, of Grantee's facilities by City or by third parties 65C-25 designated by City, or their authorized representatives. Grantee shall provide its full cooperation for any such audit, review or inspection, including providing timely access, for examination and copying of records (including computerized records) pertinent books, documents, papers, computer programs and records and reasonable access to its personnel. 8.13. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Grantee under this Agreement ("Documents & Data"). Grantee shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Grantee represents and warrants that Grantee has the legal right to license any and all Documents & Data. Grantee makes no such representation and warranty in regard to Documents & Data which were provided to Grantee by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 8.14. Grantee shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Grantee performs the services which are the subject matter of this Agreement; however, the services to be provided by Grantee shall be provided in a manner consistent with all applicable standards and regulations governing such services. Grantee shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 8.15. Neither party shall assign any rights or obligations under this Agreement. 8.16. Each party covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 8.17. Each party warrants that they have executed this Agreement knowingly, freely and voluntarily and with full knowledge of its legal consequences. All parties involved warrant and represent that, prior to executing this Agreement, each party has had the opportunity to review and consider this matter with legal counsel, and that the terms of this Agreement, and its consequences, are fully understood by each party. 8.18. This Agreement represents the entire agreement and understanding between the parties, and supersedes any and all prior agreements and understandings between the parties, whether oral or written. 8,19. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 65C-26 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho RECOMMENDED FOR APPROVAL: Robert C. Cortez Deputy City Manager CITY OF SANTA ANA GERARDO MOUET Acting City Manager GRANTEE: Name: Title: 65C-27 COMMUNITY ENHANCEMENT PROGRAM GRANT APPLICATION 65C-28 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: PUBLIC HEARING - ADOPT AN ORDINANCE TO REGULATE MOBILE FOOD VENDING VEHICLES {STRATEGIC PLAN NO 5,4) 00 rm, CITR MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: TIT10067PR ❑ As Recommended ❑ As Amended ❑ Ordinance on 16' Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt an ordinance repealing existing mobile food vehicle regulations in the Santa Ana Municipal Code and replacing them with new regulations. DISCUSSION Santa Ana's leadership and community have expressed safety concerns with mobile food vending vehicles that pose traffic hazards and/or special danger to the safety and welfare of children and residents. The City's intent is to provide clear and concise regulations with regard to mobile food vending vehicles to ensure public safety and prevent traffic hazards, preserve the peace, and safeguard the welfare of the community. In December 1994, the City Council adopted regulations for vending vehicles. Subsequently in 2004 and 2005, the City Council adopted regulations by Ordinances NS -2655 and NS -2701, which were challenged by an action filed at the Orange County Superior Court (Vasquez v. City of Santa Ana - Case No. 05CC13450). The Court ruled in favor of the plaintiffs, finding that California Vehicle Code section 22455 preempted Santa Ana's ordinances because City regulations were not limited to protecting public safety. Following the Vasquez case, the City was restrained from enforcing regulations on mobile food vending vehicles even though Vehicle Code section 22455 allows a local authority to adopt additional requirements for mobile vending, restricting the time, place and manner of vending in order to protect public safety. In a collaborative effort to obtain input on this issue, City staff held meetings with community stakeholders impacted by mobile food vending. Participants in these meetings included representatives from the mobile vending industry, Comm -Link, Pico -Lowell Neighborhood Association, Orange County Health Care Agency, and representatives from the business community. City staff from the Planning and Building Agency, Santa Ana Police Department, Community Development and Public Works Agency also participated in the meetings. In addition, City staff researched best practices from other cities that had mobile vending 75A-1 Adopt an Ordinance to Regulate Mobile Food Vending Vehicles February 7, 2017 Page 2 regulations in place. The information gathered served as the findings to formulate staff's recommendations. This effort included a review from the City Attorney's Office staff to ensure adherence and compliance with applicable laws and to ensure we had proper evidence to support our regulations. In an effort to update the Santa Ana Municipal Code (SAMC), City staff recommends that City Council repeal the existing sections in Chapter 36; SAMC section 36-700 through 36-720 and SAMC section 36-50 through 36-63, and remove said sections from the municipal code. Additionally, to provide reasonable regulations for food and produce vehicles, City staff recommends the adoption of a new Food Vending Vehicle ordinance to protect the public's health and safety in accordance with Vehicle Code section 22455 and the California Retail Food Code and County of Orange Health Care Agency/Environmental Health. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 — Community Health, Livability, Engagement and Sustainability; Objective #4 (Support neighborhood vitality and livability). FISCAL IMPACT There is no fiscal impact associated with this action. Hassan Hag ani,,(CP Executive Director Planning & Building Agency AN: rb RbVepods\PBA Vehicle Vending 02-07-17 Sonia R. Carvalho City Attorney EXHIBITS: 1. Ordinance to Repeal Former Sections and Adopt New Regulations 2. Findings 75A-2 ORDINANCE NO. NS-XXXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REPEALING DIVISION 3 OF ARTICLE 1. OF CHAPTER 36 "VENDING VEHICLES' (SANTA ANA MUNICIPAL CODE SECTIONS 36-50 THROUGH 36-63); REPEALING ARTICLE XIV OF CHAPTER 36 "FOOD VENDING VEHICLES' (SANTA ANA MUNICIPAL CODE SECTIONS 36-700 THROUGH 36-720); AND ADOPTING THE NEW FOOD VENDING VEHICLE ORDINANCE IN CHAPTER 36 OF THE SANTA ANA MUNICIPAL CODE THE CITY COUNCIL OF THE CITY OF SANTA ANA HEREBY ORDAINS AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City Council of the City of Santa Ana expressly finds that vending vehicles pose traffic hazards and special danger to the safety and welfare of children and residents of the City. The City's intent is to provide clear and concise regulations to ensure safety and prevent traffic hazards, as well as preserve the peace, safety and welfare of the community. B. The City Council of the City of Santa Ana previously adopted Article XIV in Chapter 36 "Food Vending Vehicles" in December 1994 (Santa Ana Municipal Code sections 36-700 through 36-720), C, The City Council later adopted Division 3 of Article 1 in Chapter 36 "Vending Vehicles" in 2004 and 2005 (Ordinances NS -2655 and NS -2701) codified as Santa Ana Municipal Code sections 36-50 through 36-63. D. The later ordinances were challenged in an action filed in Orange County Superior Court (Vasquez v. City of Santa Ana - Case No. 05CC13450). The Court ruled for the plaintiffs, finding that California Vehicle Code section 22455 preempted the City ordinances because the City regulations were not limited to protecting public safety. E. Following the Vasquez case, the City has not sought to enact or enforce further regulation of food vending vehicles, even though Vehicle Code section 22455 allows a local authority to adopt additional requirements for mobile vending which restricts the time, place and manner of vending in order to protect the public safety. Exhibit Ordinance No. NS-XXXX Page 1 75A-3 F. In an effort to clean up the Santa Ana Municipal Code (SAMC), the City Council hereby repeals Article XIV in Chapter 36 "Food Vending Vehicles' (SAMC section 36-700 through 36-720) as well as Division 3 of Article 1 in Chapter 36 "Vending Vehicles' (SAMC section 36-50 through 36-63). G. The City Council hereby adopts a new Food Vending Vehicle ordinance restricting the place and manner of vending in order to protect the public safety in accord with Vehicle Code section 22455. Section 2. In accordance with the California Environmental Quality Act, the recommended action is categorically exempt from further review per section 15061(b)(3), in that it can be seen with certainty that the project will have no possible significant impact on the environment. A Categorical Exemption for Environmental Review No. ER -20_ - will be filed for this project. Section 3. Article XIV in Chapter 36 "Food Vending Vehicles' (Santa Ana Municipal Code Sections 36-700 through 36-720) is hereby repealed in its entirety. Section 4. Division 3 of Article 1 in Chapter 36 "Vending Vehicles" (Santa Ana Municipal Code Sections 36-50 through 36-63) is hereby repealed in its entirety. Section 5. The City hereby adopts the new "Food Vending Vehicles", Article XIV to Chapter 8 of the Santa Ana Municipal Code to read as follows: ARTICLE XIV. FOOD VENDING VEHICLES. Sec. 36-700. Purpose and Intent. The City Council expressly finds that vending vehicles pose traffic hazards and special dangers to the safety and welfare of children and residents of the city. It is the purpose and intent of the City Council, in enacting this article, to provide responsible companies and persons who engage in the operation of vending from vehicles with clear and concise regulations to ensure safety and prevent traffic hazards, as well as preserve the peace, safety and welfare of the community. Sec. 36-701. Definitions. As used in this article: A. "Crosswalk" shall be defined by the California Vehicle Code, as that term may be amended from time to time. Ordinance No. NS-XXXX Page 2 75A-4 B. `Business license" means a business license required by Chapter 21 of the City of Santa Ana Municipal Code, C. "Food vending vehicle" or "vending vehicle" means any vehicle or trailer, as those terms are defined in the California Vehicle Code, which is equipped or used for retail sales of produce and/or prepared, pre-packaged, or unprepared, unpackaged food or foodstuffs of any kind on any public street, alley or highway or private street or alley within the City. The inventory of these vehicles is not necessarily limited to edible items and may include nonfood sundries. Food vending vehicle as used in this article does not refer to, nor include, ice cream trucks as regulated in Article X of Chapter 36 of this Code. that: D. "Operator" as used in this article shall mean any entity and all person(s) (1) Owns, controls, manages, and/or leases a food vending vehicle; and/or (2) Contracts with any person(s) to drive, operate, prepare food in, and/or vend from, a food vending vehicle; and/or (3) Drive, operate, vend and/or prepare food in or from a food vending vehicle. E. "Goods" or 'merchandise" shall include items and products of every kind and description, including all foods, produce, and beverage items. F. "Park" shall be defined by Chapter 31 of this Code, as it may be amended from time to time. G. "School' shall mean any institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and maintained pursuant to standards set by the state board of education. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include either a vocational institution or a professional institution of higher educations, including a community or junior college, college, or university. H. "Street' shall be defined by the California Vehicle Code, as that term may be amended from time to time. I. "Vend" or "vending" as used in this article means soliciting, displaying, offering for sale for monetary or other consideration, or sale, of any goods or merchandise to the public from a vehicle; offering produce, prepared food, prepackaged food or nonfood sundries of any kind for sale from a food vending vehicle on a public or private street, alley, highway or public place within the City of Santa Ana and includes the movement or standing of a food vending vehicle for the purpose of searching for, Ordinance No. NS-XXXX Page 3 75A-5 obtaining or soliciting retail sales of produce, prepared food, prepackaged food or nonfood sundries. J. "Restocking" means the transfer of food, goods or merchandise to a food vending vehicle from any other person or vehicle and includes, but is not limited to, loading and delivery of food, goods and merchandise. Sec. 36.702. Operational Requirements. A. No person shall own, control, operate, manage, lease, or contract with any other person for the operation of a food vending vehicle in the City without a valid business license issued, in addition to any other license or permit required under any other chapter of this code, for each and every food vending vehicle. B. All operators shall comply with the following regulations: 1. Each operator vending any produce or other food item shall comply with all County of Orange Health Care Agency requirements for mobile food facilities, as well as all required food handling permits. Each operator shall possess and at all times display such permits in conspicuous view upon each vending vehicle. 2. Each operator shall possess and at all times display in conspicuous view upon each such vehicle a City business license. 3. Every food vending vehicle shall have the name, address, and telephone number of the holder of the business license permanently affixed on both the left and right sides of the vehicle. Such information shall be in letters and numerals not less than four inches in height and shall be in contrast to the color of the background upon which the letters are placed. 4. No additional lighting other than that required by the California Vehicle Code may be installed or operated on a food vending vehicle. No food vending vehicle that is stopped, parked or standing on any street, alley, or highway shall display flashing neon or electronic display signs or visual displays that are intended to, or do in fact, distract drivers and draw attention to the food vending vehicle. 5. No operator of a food vending vehicle shall operate any sound amplification systems or other sound making devices or music systems to advertise, draw attention to, or announce the presence of any such vehicle while such vehicle is moving, stopped, standing, or parked upon any public or private street. 6. No owner or operator of a vending vehicle shall permit vending within five hundred (500) feet from a school, park, community center or public playground facility, Ordinance No. NS-XXXX Page 4 75A-6 7. No owner or operator shall permit the vending vehicle to vend within one hundred (100) feet of a marked or unmarked crosswalk in an intersection. B. No food vending vehicle shall be parked, stopped, or left standing in any manner which blocks or impedes vehicular access to any driveway or restricts the free movement of other vehicles upon any public or private street. Vending shall only be permitted where the food vending vehicle has been brought to a complete stop and parked adjacent to the curb in a lawful manner 9. Vending from a food vending vehicle while the vehicle is parked, stopped, or standing on any public or private street, alley, or highway is permitted only when that part of the food vending vehicle open to prospective customers is on the side of the vehicle immediately next to the right side of the public or private street, alley, or highway. Under no circumstances may vending occur from the left side of a food vending vehicle. Notwithstanding the above provisions, no person shall vend to any customer whose location creates a traffic hazard. 10. All food vending vehicles shall be equipped with refuse containers large enough to contain all trash and refuse generated by the operation of such vehicle. The operator of the food vending vehicle shall pick up all trash and refuse generated by the operator's vending during the time the vehicle is stopped, that is within not less than a fifty (50) -foot radius of the vehicle, before such vehicle is moved. 11. Restocking of a food vending vehicle is prohibited while the vehicle is on any public or private street or alley. 12. No food vending vehicle shall attach to or receive any electrical power or other utilities from any public or private property while the vehicle is located on any private or public street or alley. 13. Vending is prohibited from a food vending vehicle that is parked, stopped, or standing on any public street, alley, or highway where the posted speed limit on the public street, alley, or highway is thirty-five miles per hour or greater. 14. No owner or operator of a vending vehicle shall permit objects, including but not limited to tables, chairs, or other furniture, trash receptacles, generators or equipment, to be placed into that portion of the street, alley or highway which is open to vehicular traffic, nor shall any object, including but not limited to tables, chairs, other furniture, trash receptacles, generators or equipment, be placed within or upon the parkway or sidewalk. 15. In conformance with the California Retail Food Code and County of Orange Health Care Agency/Environmental Health, food vending vehicles shall be stored at or within an approved commissary in order to have protection from unsanitary conditions. Food vending vehicles shall not be stored overnight outside of an approved commissary. Ordinance No, NS-XXXX Page 5 75A-7 16. In conformance with the California Retail Food Code and County of Orange Health Care Agency/Environmental Health, any food vending vehicle which is parked and vending in single location for one hour or longer must be parked within two hundred (200) feet of an approved and readily available toilet and handwashing facility, to ensure that restroom facilities are available to food vending vehicle employees. The food vending vehicle operator must provide written evidence of permission from an adjoining property owner to use their restroom facilities. Sec. 36-703, Exemptions. This article shall not apply to any City -sponsored event where the operator of the food vending vehicle is operating pursuant to a valid contract with the City. Sec. 36-704. Land Use Certificate Required for Vending on Private Property. A. Food vending vehicles shall be allowed on private property in conjunction with a Land Use Certificate and/or special event permit for activities on property in commercial, manufacturing, or planned development zones designated for commercial or manufacturing uses. Food vending vehicles operating on private property must obtain the consent of the person who is in legal control of the property and subject to the provisions of Chapter 41 of the City of Santa Ana Municipal Code. B. Food vending vehicles shall be allowed on private property in conjunction with a Land Use Certificate and/or special event permit for activities such as filming for movies, a party, fair, or carnival Food vending vehicles operating on private property must obtain the consent of the person who is in legal control of the property and subject to the provisions of Chapter 41 of the City of Santa Ana Municipal Code. C. Pursuant to this section, the following restrictions apply to vending on private property: 1. A food vending vehicle may only vend and remain parked on private property for the period of time noted in the Land Use Certificate and/or special event permit. All food vending vehicles are required to have a City of Santa Ana business license conspicuously displayed when vending. Nothing in this section shall be construed to excuse food vending vehicles from complying with all other provisions of this chapter. Ordinance No. NS-XXXX Page 6 75A-8 Sec. 86-705, Penalty for Violation. Every violation of the provisions of this article shall be deemed to be a misdemeanor and, upon conviction thereof, shall be punishable as provided for in section 1-8 of this Code. Each day any violation of any said provision of this article shall continue shall constitute aseparate offense. Alternatively, violations of this article may be addressed through the use of an administrative citation as set forth in sections 1-21.1 through 1-21,9 of this Code. Use of an administrative citation shall not prevent or preclude the City from seeking additional criminal, civil or other legal remedy established by law. Section 6. If any section, subsection, sentence, clause or phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause or phrase or portion thereof irrespective of the fact that any one or more section, subsection, sentence, clause or phrase or portions be declared invalid or unconstitutional. ADOPTED this APPROVED AS TO FORM: Sonia Carvalho, City Attorney BY:r Lisa Storck Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: day of 2017. Councilmembers Councilmembers Councilmembers Councilmembers Miguel A. Pulido Mayor 75A-9 Ordinance No. NS-XXXX Page 7 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-XXXX to be the original ordinance adapted by the City Council of the City of Santa Ana on , 2017, and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Clerk of the Council City of Santa Ana Ordinance No. NS-XXXX Page 8 75A-10 [Exhibit 2 to RFCA] Findings in Support of the Proposed SAMC Mobile Vending Regulations Distance restrictions from schools, parks, community centers, and public playgrounds A majority of school children in Santa Ana walk to and from school, and the City continuously works to improve the safety of walking routes to school and other community destinations for the City's youth. In the opinion of Engineering staff, the presence of vending tricks in the vicinity of schools, parks, and community centers creates a hazardous condition by providing an attraction for children to cross streets at midblock locations. The concern is greatest at schools where those streets have driving lanes queued with cars carrying parents arriving to pickup or drop off their students. Traffic Engineering staff has observed occurrences of students crossing streets midblock to reach vending tricks. In addition, the gathering of customers waiting in line for vending tricks create the potential to block paths along sidewalks, thereby forcing children and other pedestrians to dangerously detour around the blocked sidewalk and out into the street in the travel path of vehicles. The size of vending trucks obstructs visibility to both vehicle drivers and pedestrians, resulting in potentially unsafe conditions under certain circumstances. Therefore, similar to specific locations whereby engineering staff use red curb markings to maintain visibility and reduce line of sight obstructions, it is the opinion of Traffic Engineering staff, that vending trucks should not stop to operate/conduct business at any location within 500' from a school, park, community center or public playground. Distance restrictions from a crosswalks and intersections Right of way for vehicle, bicycle and pedestrian traffic at roadway intersections and crosswalk is controlled by a variety of devices, such as traffic signals, signage, and flashing beacon, which are typically placed behind the curb to the right of the vehicle path. For the traffic control devices to be effective, the signage must be visible a sufficient distance in advance of the intersection or crosswalk to allow vehicles to stop. The City recently approved Safe Mobility Santa Ana, which analyzed causes and correlation of traffic collisions for a ten year period. The analysis determined that over 50% of all pedestrian vs. motor vehicle collisions occurred at intersections. Often, these types of collisions are due to the motor vehicle driver not seeing, or otherwise not being aware of the pedestrian. Vending trucks, with their high profile, boxy shape, and lack of windows create an obstruction to visibility particularly near intersections and crosswalks where there is significant concentrations of vehicle and pedestrians. Therefore, similar to specific locations whereby engineering staff use red curb markings to maintain visibility and reduce line of sight obstructions, it is the opinion of Traffic Engineering 75A-11 staff, that to maintain visibility of traffic and traffic control devices, vending trucks (stop to operate/conduct business at any location) are prohibited within 100' of intersections and marked or unmarked crosswalks. Vending prohibited on streets where posted speed is 35 mph or greater. The City recently approved Safe Mobility Santa Ana, which analyzed causes and correlation of traffic collisions for a ten year period. The study determined that, while arterial streets constitute only 21% of the roadway network in the City, over 60% of collisions involving severely injured or killed pedestrians and bicyclists occur on arterial streets where speeds are typically 35 mph or higher. In the opinion of Engineering staff, the presence of vending trucks on streets with speed limits greater than 35 mph creates a hazardous condition by obstructing visibility to view pedestrians, bicyclists, and traffic control devices, providing an attraction for patrons to cross streets at midblock locations, and creates the potential for customers to block sidewalk requiring pedestrians to enter the motor vehicle path. Additional Mobile Vending Health and Safety Issues Encountered by Santa Ana Police Department The Santa Ana Police Department has reported that during recent years, mobile vending trucks have attracted individuals engaged in the sales of narcotics. At times it has been employees of the mobile vending trucks and more frequently individuals who use the vending trucks as a way to blend in with the environment to give their illegal activity a perception of legitimacy. The illegal activity has included narcotics sales and illegal sale of cigarettes. It is also known that many gang members use the mobile vending trucks as a way to conceal narcotics and firearms in order to prevent being in possession of the items when contacted by the police. It is not unusual for truck operators to be intimidated by gang members and feel obligated to pay a "tax" to the local gang(s). Mobile vending trick operators have also been victims of crimes from robbery to homicide. A high concentration of vending trucks are found in the most challenging gang areas of the city and exacerbate the quality of life/crime related issues in those areas. Many of the vending trucks sell replica/toy firearms. As such often times guns purchased from the vending tracks have been used to perpetrate crimes. Those firearms have also been used by vending trick operators as a feint form of protection. The toy/replica firearms being sold in areas with a high concentration of vending tricks may lead to disastrous results to the prevalence of real firearms and violent crime in some of those areas. Vending tricks post both pedestrian and traffic related problems. Many of the vendors set out chairs and tables along the curb/sidewalk areas which can obstruct the use of the public walkway by those not patronizing the vending track. Due to the size of mobile vending tricks and their common presence in some of the most densely populated areas of Santa Ana the risk for 75A-12 pedestrian fatalities is a major concern. Many of the areas with the high concentration of vending trucks have a large amount of children who live and go to school in the area. 75A-13 75A-14 REQUEST FOR COUNCIL/ HOUSING AUTHORITY ACTION CITY COUNCIL MEETING DATE: FEBRUARY 7, 2017 TITLE: CITY OF SANTA ANA CONDITIONAL LOAN AGREEMENT AND HOUSING SUCCESSOR AGENCY LOAN AGREEMENT WITH AMCAL MULTI -HOUSING, INC. FOR THE FIRST STREET APARTMENTS PROJECT; APPROPRIATION ADJUSTMENTS FOR THE LOAN AGREEMENTS {STRATEGIC PLAN NO. 5, 3C} CITY MA AGER EXECUTIVE DIRECTOR RECOMMENDED ACTION CITY COUNCIL ACTION 1\, ��u��� ulrt CLERK OF • ONLY: C� As Recommended As Amended Ordinance on 12' Reading ® Ordinance on 2"d Reading ® Implementing Resolution [] Set Public Hearing For CONTINUED TO FILE NUMBER 1. Authorize the City Manager and the Clerk of the Council to execute a conditional loan agreement with AMCAL Multi -Housing, Inc. for $2,600,000 in inclusionary housing in -lieu fees anticipated from the Heritage Village OC, LLC, that will be contingent on the City's actual receipt of an in -lieu fee payment of $2,600,000 from Heritage Village OC, LLC, to create 69 units of affordable housing at 1440 East First Street in Santa Ana, subject to non -substantive changes approved by the City Manager and City Attorney. 2. Approve an appropriation adjustment recognizing $2,600,000 from Heritage Village OC, LLC for deposit into Inclusionary no. (41718002-57896) and no. (41718820-69152) for Housing, Inc. appropriating same to the Loans the $2,600,000 conditional loan inclusionary housing in -lieu fees Housing Fund revenue account and Grants expenditure account agreement with AMCAL Multi - 3. Approve an appropriation adjustment recognizing the Housing Successor Agency's fund balance in the amount of $6,195,000 in revenue account no. (60718002-50001) and appropriating same to the Low and Moderate Income Housing Asset Fund's Loan and Grants expenditure account no. (60718830-69152) for the $6,195,000 loan agreement with AMCAL Multi -Housing, Inc. 80A-1 Loan Agreements with AMCAL Multi -Housing, Inc. and Appropriation Adjustments February 7, 2017 Page 2 HOUSING AUTHORITY ACTION 1. Authorize the City Manager/Executive Director to execute a loan agreement with AMCAL Multi -Housing, Inc. for $6,195,000 in Housing Successor Agency funds, to create 69 units of affordable housing at 1440 East First Street in Santa Ana, subject to non -substantive changes approved by the City Manager/Executive Director and City Attorney. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its regular meeting on January 25, 2017, by a vote of 6:0, the Community Redevelopment and Housing Commission approved the recommended actions. DISCUSSION At its regular meeting on December 20, 2016, by a vote of 4:2 (Martinez, Pulido dissented; Benavides absent), the City Council authorized the City Manager to execute a conditional loan commitment letter with AMCAL Multi -Housing, Inc. (AMCAL) for $2,600,000 of inclusionary housing in -lieu fees anticipated from the Heritage Village OC, LLC, that will be contingent on the City's actual receipt of an in -lieu fee payment of $2,600,000 from Heritage Village OC, LLC. The City Council also authorized the City Manager and the City Attorney to draft loan agreements for City Council consideration in an amount not to exceed $2,600,000 for the First Street Apartments Project located at 1440 East First Street (Exhibit 1). This conditional loan agreement for $2,600,000 (Exhibit 2) will allow AMCAL to move forward with the First Street Apartments Project to obtain their necessary low-income housing tax credit financing. AMCAL expects to submit an application for their low-income housing tax credit financing on March 1, 2017 for the first competitive application funding round deadline and approval of this loan agreement will permit AMCAL to submit their application. The conditional loan agreement is contingent on the City's actual receipt of an in -lieu fee payment of $2,600,000 from Heritage Village OC, LLC (Heritage Village) because the Heritage Village requested to allocate the in -lieu fees from their Heritage Village Project to AMCAL and City Council approved the allocation of those funds on April 19, 2016, but the City has not yet received the in -lieu fee payment of $2,600,000. If the City does not receive the in -lieu fee payment of $2,600,000 from the Heritage Village, the City Manager and the Clerk of the Council will not execute the loan agreement with AMCAL. As such AMCAL will be unable to meet their March 1, 2017 deadline to apply for tax credits. Additionally, on December 20, 2016, by a vote of 4:2 (Martinez, Pulido dissented; Benavides absent), the Housing Authority also authorized the City Manager/Executive Director and the City Attorney to draft loan agreements for Housing Authority consideration in an amount not to exceed $6,195,000 for the First Street Apartments Project (Exhibit 3). Project Description AMCAL's project, located at 1440 East First Street in Santa Ana, will provide 69 units of affordable workforce housing. The residential units will be located within six buildings. The rental units (less 80A-2 Loan Agreements with AMCAL Multi -Housing, Inc. and Appropriation Adjustments February 7, 2017 Page 3 one manager's unit) are 100% affordable to family households earning between 30% and 60% of the Area Median Income (AMI). The unit mix currently consists of six four-bedroom units, 28 three-bedroom units and 35 two-bedroom units (one being a manager's unit). Eight of the units will be assisted by the Santa Ana Housing Authority's Project -Based Voucher Program. The unit mix and affordabilitv restrictions are as follows: On-site amenities will include a community room and amenity space including tot lots/play areas for children, outdoor seating, BBQs, a flex play space and planters. The community room will be incorporated into the development, providing a computer laboratory, kitchen, activity room for resident activities, and office space for property management and social services staff. AMCAL will engage the non-profit organization LifeSTEPS to provide free on-site social services to project tenants. Services will be provided in the form of classes and workshops with the subject matter tailored by a social service coordinator to the specific needs of the community. The City's inclusionary housing funds will be provided by means of a 55 -year City loan carrying a three percent interest rate and payable by residual receipts. The Housing Successor Agency funds will also be provided by means of a 55 -year loan carrying a three percent interest rate and payable by residual receipts. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #3 (Facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods), Strategy C (Provide that Santa Ana residents, employees, artists and veterans receive priority for affordable housing created under the City's Housing Opportunity Ordinance or with City funding to the extent allowed under state law). FISCAL IMPACT Upon actual receipt of the funds, approval of the appropriation adjustment will recognize $2,600,000 in the Inclusionary Housing Fund revenue account no. (41718002-57896) and increase the Inclusionary Housing Fund Loans and Grant account no. (41718820-69152) by the same amount in the FY 2016-17 budget. The $2,600,000 loan amount will be encumbered in FY 2016-17, but anticipated expenditure will most likely occur in FY 2017-18. • I . 30% AMI 369 AMI 40% AMI 46% AMI 60% AMI 60% AMI Unit Size No. Units Proposed Proposed Proposed Proposed Proposed Proposed Total Rent No. Units Rent No. Units Rent No. Units Rent No. Units Rent No. Units Rent Two 29 $ 604 0 0 0 4 $ 1,043 1 $ 1,263 34 Bedroom Three 4 $ 700 0 0 — 0 -- 17 $ 1,207 7 $ 1,461 28 Bedroom Four 1 $ 780 0 -- 0 — 0 -- 0 $ 1,345 5 $ 1,628 6 Bedroom Total 34 21 13 68 1. The one two-bedroom Manager's Unit is not included, 2. Rents are based on the most current 2016 rents published by the Tax Credit Allocation Committee, Utility Allowances are deducted from rents using the following amounts per the Califomia Utility Allowance Calculator (CUAC)', $54 for 2 Bdmt units; $60 for 3 Bdrm units; $68 for 4 Bdrm units. On-site amenities will include a community room and amenity space including tot lots/play areas for children, outdoor seating, BBQs, a flex play space and planters. The community room will be incorporated into the development, providing a computer laboratory, kitchen, activity room for resident activities, and office space for property management and social services staff. AMCAL will engage the non-profit organization LifeSTEPS to provide free on-site social services to project tenants. Services will be provided in the form of classes and workshops with the subject matter tailored by a social service coordinator to the specific needs of the community. The City's inclusionary housing funds will be provided by means of a 55 -year City loan carrying a three percent interest rate and payable by residual receipts. The Housing Successor Agency funds will also be provided by means of a 55 -year loan carrying a three percent interest rate and payable by residual receipts. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #3 (Facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods), Strategy C (Provide that Santa Ana residents, employees, artists and veterans receive priority for affordable housing created under the City's Housing Opportunity Ordinance or with City funding to the extent allowed under state law). FISCAL IMPACT Upon actual receipt of the funds, approval of the appropriation adjustment will recognize $2,600,000 in the Inclusionary Housing Fund revenue account no. (41718002-57896) and increase the Inclusionary Housing Fund Loans and Grant account no. (41718820-69152) by the same amount in the FY 2016-17 budget. The $2,600,000 loan amount will be encumbered in FY 2016-17, but anticipated expenditure will most likely occur in FY 2017-18. • I . Loan Agreements with AMCAL Multi -Housing, Inc. and Appropriation Adjustments February 7, 2017 Page 4 Approval of the appropriation adjustment will recognize $6,195,000 in the Low and Moderate Income Housing Asset Fund's revenue account (no. 60718002-50001) and increase the Loan and Grants expenditure account no. (60718830-69152) by the same amount in the FY 2016-17 budget. The $6,195,000 loan amount will be encumbered in FY 2016-17, but anticipated expenditure will most likely occur in FY 2017-18. Robert C C o Aerz---- Deputy City Manager City Manager's Office APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez (� Executive Director Finance and Management Services Agency Exhibits: 1. 1440 East First Street Site Map 2. Inclusionary Housing Funds Loan Agreement 3. 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R1 R1 HR1 vat M2MR1 R1 R1 � RI RI ao M1 R1 R1 M1 Mt R4 Al GERE`ALAGR0JLIUPALt CR 0GMMEFDALRESDERIIAL R1 SINGLE FAMILY FESDEJTIAL -B FARANGMODIFlCATION GC GDM MERTCEJ P2 TV\CFAMILYRESDERCE OSSA C]MIMEFUALSDUTHMAIN M1 LIGHTINDUSRAL w MULTR-EDBSTYMULIIFLE cl OCMMUNITYOCMMMAL M2 HEAWINDUSRRAL FAMILYFESDEJCE Cl -MD CCMM.0JMMESMAUMUS31MDISRRGT MO MIUTARfOPERATONS R4 SIBJR NARAFTMI TS C2 GEJEALOCMMLROAL 0 OPER SPACE RE FEIDMJ ALEETATE m CENTFALEJSINE P PF!DF OWL SD SPECHCDEAOPMERT C&A CERTRALF9JSNE35ARFISTMILIAGE POD PLANNED COMMUNITY DEVaOPMERT m =FIGPLAN C4 PLANNEJSIOPRNGCEJ Rp FIANNEDFESIDERTIALD�ERT 05 AFM9RALCOMMEFDAL MR.GPA 2016-1 & AA 2016-1 AMCAL FIRST STREET FAMILY APARTMENTS 1440 EAST FIRST STREET — = 500 FffT 1"= 1000 F&T P L A N N I N G A N D B U I L D I N G A G E N C Y EXHIBIT 1 80A-5 EXHIBIT 2 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Division Manager SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] by and between the CITY OF SANTA ANA, and AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership (1440 East First Street, Santa Ana, California) Dated: February , 2017 80A-7 LOAN AGREEMENT INCLUSIONARY HOUSING PROGRAM THIS LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of February _, 2017, is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation ("City"), and AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership ("Developer") with reference to the following: RECITALS: A. The City's Housing Opportunity Ordinance ("Ordinance") was originally adopted by the City Council on November 28, 2011 (Ordinance No. NS -2825), and is codified in Article XVIII.I of the Santa Ana Municipal Code ("SAMC"). The Ordinance was amended by the City Council on September 1, 2015 (Ordinance No. NS -2881), and on October 6, 2015 (Ordinance No. NS -2885). The Ordinance established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to SAMC section 41-1904(c), developers may pay an in -lieu fee in certain instances to satisfy the inclusionary requirements. These funds are deposited into the Inclusionary Housing Fund, as defined by SAMC section 41-1901, and are to be used to increase and improve the supply of affordable housing per SAMC section 41-1909. B. Developer requested financial assistance in connection with the proposed development of a sixty-nine (69) unit affordable workforce housing complex ("Project") to be located at 1440 East First Street, Santa Ana, California, and legally described within Exhibit A attached hereto and incorporated herein ("Property"). The residential units will be located within six (6) buildings. The rental units (less one manager's unit) are 100% affordable to family households earning between 30% and 60% of the Area Median Income ("AMI"). The unit mix currently consists of six (6) four-bedroom units, twenty-eight (28) three-bedroom units, and thirty-five (35) two-bedroom units (one being a manager's unit). Eight (8) of the units will be assisted by the Santa Ana Housing Authority's Project -Based Voucher Program. On-site amenities will include a community room and amenity space including tot lots/play areas for children, outdoor seating, BBQ's, a flex play space and planters. The community room will be incorporated into the development, providing a computer laboratory, kitchen, activity room for resident activities, and office space for property management and social services staff. Developer will engage a qualified non-profit organization approved by the City (of which LifeSTEPS is hereby approved by the City) to provide free on-site social services to Project tenants. Services will be provided in the form of classes and workshops with the subject matter tailored by a social service coordinator to the specific needs of the community. C. The City reviewed Developer's request for assistance and at the City Council meeting on December 20, 2016, the City Council authorized and approved issuance of a conditional, pre -commitment letter evidencing the preliminary award of $2,600,000 of funds to the Project ("Inclusionary Loan"), to be funded exclusively from inclusionary housing in -lieu fee 2 payments made pursuant to the Housing Opportunity Ordinance by the developer of that certain mixed-use development to be located at 2001 East Dyer Road, Santa Ana, California. D. The amount of the Inclusionary Loan was determined based upon the City's review of the Developer's request for the receipt of the Inclusionary Loan and the development proforma and projected cash flows for the Project submitted by the Developer to the City as of March 18, 2016 ("Proforma"). The City Manager has authority to approve revised development proformas and projected cash flows for the Project; provided, however, that the Inclusionary Loan is not materially increased or extended. E. In furtherance of the Inclusionary Housing Program, Developer has applied to the City for a loan with which to: 1. Provide deeper affordability and construct the improvements to the Property, and 2. Thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. F. The City, on certain terms and conditions, desires to make such Inclusionary Loan to Developer in order to make possible the construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. G. If there is any inconsistency between Federal, State, and local guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, City and Developer agree as follows: DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Project Documents, unless otherwise expressly defined, are defined where first used in this Agreement and/or as set forth in this Article 1. "Affordable Housing" means the total housing costs paid by a qualifying household, which shall not exceed the fraction of gross income specified, as follows, in accordance with Sections 50052.5 and 50053 of the Health & Safety Code: Very Low -Income Households. Thirty (30) percent of the income of a household earning fifty (50) percent of the Orange County median income adjusted for family size appropriate for the unit. Low -Income Households. Thirty (30) percent of the income of a household earning seventy (70) percent of the Orange County median income for for -sale units, and thirty (30) percent of the income of a household earning sixty (60) percent of the Orange F46111mo County median income for rental units, adjusted in either case for family size appropriate for the unit. In the event of a conflict between the fractions specified in this definition and those found in Sections 50052.5 and 50053 of the Health & Safety Code, the fractions specified by State law shall control. "Affordability Restrictions on Transfer of Property" means that certain document affecting real property benefiting the City, attached hereto and incorporated herein as Exhibit B. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the California Tax Credit Allocation Committee (TCAC), or by the State of California, as applicable. "Building Permit" means the building permit(s) issued by City and required for the construction. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. corporation. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Inclusionary Loan Agreement and Inclusionary Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Developer's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Developer" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Developer's Representative" shall mean an officer of the General Partner of Developer or his/her designee. 4 Foorlymul "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. "Event of Default" has the meaning set forth in Section 20.1. "General Partner" means AMCAL Multi -Housing Two LLC, a California limited liability company. "Governmental Authority" means any governmental or quasi -governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et s�Mc., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. Hazardous Material shall not include (i) construction products, household cleaners and office materials of the type and quantity ordinarily used in the normal construction, operation and maintenance of properties similar to the Project or (ii) small amounts of household mold to the extent promptly remediated upon discovery. "Housing Opportunity Ordinance" means the Ordinance originally adopted by the City Council on November 28, 2011 (Ordinance No. NS -2825), and as amended by the City Council on September 1, 2015 (Ordinance No. NS -2881), and on October 6, 2015 (Ordinance No. NS -2885), which is codified in Article XVIII.I, Section 41-1900, et seq. of the Santa Ana Municipal Code. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "HCD" means the California Department of Housing and Community Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements, as required through the City of Santa Ana Planning and Building Agency entitlement process. "Inclusionary Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit C, to be executed by Developer pursuant to Section 5.B.1 in order to secure the Inclusionary Loan Note. 5 80A-11 "Inclusionary Housing Fund" means the fund created by the City of Santa Ana in which all fees collected in compliance with the Housing Opportunity Ordinance shall be deposited, as defined by Santa Ana Municipal Code section 41-1901 and applied by Santa Ana Municipal Code section 41-1909. "Inclusionary Promissory Note" means that certain promissory note for Inclusionary Funds in the original principal amount of $2,600,000 in the form attached hereto as Exhibit D, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the Inclusionary Loan through residual receipts as further described in the Inclusionary Promissory Note. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non-recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 14.5. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Inclusionary Loan Documents" or "Loan Documents" means, collectively, this Agreement, the hnclusionary Promissory Note, the Inclusionary Deed of Trust, and the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the City reasonably requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HCD. Also may be referred to interchangeably in the Inclusionary Loan Documents as "Area Median Income" or "AMP. 6 80A-12 "Partnership Agreement" means the Agreement of Limited Partnership of AMCAL 1440 SANTA ANA FUND, L.P., dated as of September 1, 2015 attached herein as Exhibit H. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the City Deed of Trust" means the Senior Loan Deed(s) of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Developer pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached hereto as Exhibit E, as modified from time to time in accordance with this Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 1440 East First Street in the City of Santa Ana, and is more fully described in the "Legal Description' of the Property attached hereto as Exhibit A and incorporated herein by reference. "Scope of Work/Schedule of Performance" means the detailed statement of the work to be performed by Developer on and to the Property pursuant to this Agreement, along with the Schedule of Performance setting forth timeframes for certain tasks, which document is attached hereto as Exhibit F. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender concurrent to the Inclusionary Loan for payment of a portion of the acquisition and construction costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Senior Loan Deed of Trust" means the first deed(s) of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term of Affordability" means the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSG, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. 1.2 Singular and Plural Terms. Any defined term used in the plural in this Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 References and Other Terms. Any reference to this Agreement shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation." 1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. [RESERVED] 3. SCOPE OF WORK/PROJECT BUDGET A "Scope of Work" and "Schedule of Performance" for the Property is attached hereto as Exhibit F. Any material change to the Scope of Work/Schedule of Performance requested by the Developer shall be subject to the prior written approval of the City Project Manager. The Scope of Work/Schedule sets forth the construction work that shall be performed on the Property and timeframes for approvals and such work. A line -item budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit E ("Project Budget'). Any material change to the Project Budget requested by Developer shall be subject to the prior written approval of the City Project Manager. 4. [RESERVED] 5. INCLUSIONARY LOAN: The Inclusionary Loan shall be evidenced by the Inclusionary Promissory Note in the form attached hereto as Exhibit D. The Inclusionary Loan shall be secured by the Inclusionary Deed of Trust in the form attached hereto as Exhibit C. The terms and conditions of the Inclusionary Loan are as set forth in the Inclusionary Promissory Note. The term of affordability for the Project is fifty-five (55) years from the receipt of Certificate of Occupancy for the Project, or repayment of the Inclusionary Loan, whichever is longer. 5.1. Inclusionary Housing Funds: A. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan to Developer from Inclusionary Housing funds in the principal amount of up to $2,600,000.00 for the construction and other costs of the Project. The City shall notify the Developer within ten (10) days of the receipt of the In -Lieu Fee. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent. City's obligation to disburse the loan is subject to the satisfaction of the following conditions precedent: (a) Receipt by the City of the In -Lieu Fee. On October 6, 2015, the City received a letter indicating a market rate developer's preference that their In -Lieu Fees be applied towards the Project. The Developer agrees and acknowledges that while a preference has been stated and the City has agreed to honor the preference, the City shall have no obligation to fund the Inclusionary Loan unless the In -Lieu Fee has been received by the City. (b) City Council. Review and approval of the Inclusionary Loan Documents by the City Council. (c) Environmental Review. Compliance with and completion of environmental review of the Project pursuant to the California Environmental Quality Act ("CEQA") and approval thereof. (d) Affordability Restrictions. Sixty-eight (68) of the sixty-nine (69) "Housing Units" at the Project shall and will be restricted to "Affordable Rent" as defined by the California Tax Credit Allocation Committee (TCAC) Regulations for a period not less than fifty- five (55) years pursuant to conditions, covenants and restrictions recorded against the Project in the Official Records, County of Orange, California. Thirty-four (34) of the sixty-eight (68) Housing Units at the Project shall and will be restricted to households earning 30% or less of the AMI, unless the City and the Developer reasonably determine that it is necessary for a lesser number of Housing Units at the Project to be restricted to households earning 30% or less of AMI to cause the Project to be competitive for tax credit financing and/or to be financially viable. One (1) Housing Unit will be rented to an on-site property manager; the manager's unit will not be rent restricted. (e) Loan Documents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signature(s) aclmowledged where necessary, each of the following documents: (i) this Inclusionary Loan Agreement; (ii) the Inclusionary Promissory Note ($2,600,000); (iii) the hiclusionary Deed of Trust; and, (iv) the Affordability Restrictions on Transfer of Property. (f) Title Insurance. City shall have received an American Land Title Association (ALTA) Extended (LP -10) Loan Policy (6-17-06), or evidence of a commitment therefore satisfactory to City, issued by Commonwealth Land Title Insurance Company and in form and substance satisfactory to City, together with all endorsements and binders required, naming City as the insured, in a policy amount of not less than the total Inclusionary Loan Amount, showing Developer as the fee owner of the Property and insuring the Inclusionary Deed of Trust to be a valid priority lien on the Property. This Agreement, the Inclusionary Promissory Note, and the Inclusionary Deed of Trust shall all be subordinate to the Senior Loan Note and Senior Loan Deed of Trust. (g) Affordability Restrictions on Transfer of Property. Developer shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit B, the Affordability Restrictions on Transfer of Property pursuant to which, among other things, Developer agrees that the Property shall be used only for decent, safe, sanitary and affordable rental housing pursuant to the affordability requirements of California Health and Safety Code ("H&S") sections 50052.5 and 33334.3, as applicable. The City's Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated. (h) Documents Recorded. This Loan Agreement, the Inclusionary Deed of Trust, and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. (i) Request for Notice. For the benefit of City, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default"). 0) Insurance. City shall have received evidence satisfactory to the City Attorney that all of the policies of insurance required by Section 19 of this Agreement are in full force and effect. (k) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct in all material respects as of the Close of Escrow as though made on and as of that date, and if requested by the City Project Manager, City shall have received a certificate to that effect signed by Developer's Representative. (1) No Default. No Event of Default by Developer shall have occurred, and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer under this Agreement, and if requested by the City Project Manager, City shall have received a certificate to that effect signed by Developer's Representative. (m) The City's obligation to provide the Inclusionary Loan is and shall remain subject to all covenants, conditions, and restrictions set forth in this Loan Agreement, and in particular City's analysis of the available funding sources and development and operating costs of the Project and the overall economic feasibility of the Project. 6.2 Disbursement Procedures for Loan. The hiclusionary Loan proceeds shall be disbursed through Escrow to finance the acquisition, development and construction of the Project (as evidenced in Exhibit E). The Inclusionary Loan proceeds shall not be used for any purpose other than for acquisition and predevelopment and construction related costs, including Developer fee and soft costs related to the development of the Project (costs all subject to City's prior review). 6.3 First Disbursement. City's obligation to make the first disbursement of the Loan is subject to satisfaction of the following conditions precedent: (a) All grading permits shall have been issued or the City shall have issued a letter stating that building permits are ready to issue, subject only to payment of fees and the completion of grading of the Project site. (b) Developer shall have secured all necessary financing and funding for the construction and operation of the Project. Such financing and funding shall be sufficient to pay all Project development costs, through lease -up, as set forth in the final budget consistent with the approved Proforma (or as otherwise approved by the City). (c) Developer shall have provided evidence to the City that the Developer has obtained insurance policies and certificates or endorsements acceptable to the City, as described in this Loan Agreement. (d) Developer shall have provided construction security in favor of the City, which may include a completion guarantee from AMCAL Multi -Housing, hie. and/or a letter of credit and/or performance and payment bonds from the general contractor for the Project (or some combination of these), in an amount sufficient to ensure the Project will be completed and placed in service within the time set forth in the Project schedule approved by the City. (e) Developer shall submit and obtain the Executive Director of the Community Development Agency's approval of the construction contract, the identity and qualifications of the General Contractor, Developer's limited partnership agreement for the limited partnership entity to be formed to own and operate the Project, and management, marketing and tenant selection plans for the Project. 11 80A-17 6.4 Termination for Failure of Condition. If (a) any of the conditions set forth herein are not timely satisfied (subject to applicable notice and cure rights), and (b) City is not in default under this Agreement, City may terminate this Agreement without any further liability on its part by giving written notice of termination to Developer. Upon the giving of such notice, all principal, interest and other amounts owing under the specified due date. 6.5 Any Disbursement. City's obligation to make any disbursement of the Loan, including the first and final disbursements, is subject to the satisfaction of the following conditions precedent: (a) Satisfactory Progress. The City Project Manager shall be satisfied that, based on his/her own inspections or other reliable information, the construction is progressing satisfactorily in conformance with all applicable laws and other requirements (including the City's Inclusionary Housing guidelines). (b) Condition of Title. Either (i) the City Project Manager reasonably believes that no event has occurred since the Close of Escrow that would give rise to a colorable claim against the Property (e.g., a mechanic's lien) superior to the claim of City against the Property with respect to the subject disbursement, or if such claim is made, then City Project Manager shall receive satisfactory evidence that such claim has been bonded over until its resolution; or (ii) City must have received, at Developer's expense but payable out of the Loan proceeds from the title insurer who issued City's LP -10 Title Policy, all endorsements thereto then reasonably required by City (including, without limitation, CLTA Form 122 -- priority of advance endorsements). (c) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other City Loan Documents shall be correct in all material respects as of the date of the disbursement as though made on and as of that date. (d) No Default. No Event of Default by Developer shall remain uncured (unless, to the extent permitted under this Agreement, Developer is diligently taking action to cure such default) and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer. 6.6 Final Disbursement. City's obligation to disburse that portion of the Loan funds retained pursuant to Section 6.12 is subject to the satisfaction of the following additional conditions precedent: (a) Construction complete. The construction of the Project shall be complete. (b) Certificate of Occupancy Issued. Any portion of the construction work requiring inspection or certification by any Governmental Authority shall have been inspected and certified as complete. Developer shall request that the Building Department issue a Certificate of Occupancy, a copy of which shall be delivered to the City Project Manager, in order for final disbursement to occur. 12 80A-18 (c) Lien Free. At least one of the following shall have occurred: (i) Thirty-five (35) days shall have passed since the recording of a valid notice of completion for the construction, and no mechanic's or materialman's lien shall be outstanding; or (ii) Ninety-five (95) days shall have passed since actual completion of the construction, and no mechanic's or materialman's lien shall be outstanding, or Developer shall have bonded over any such lien to City's reasonable satisfaction. 6.7 Waiver of Conditions. The conditions set forth pertaining to City's obligation to make disbursements of the Loan proceeds are for City's benefit only and the City Project Manager may waive all or any part of such rights by written notice to Developer. 6.8 Disbursement Requests. The Loan proceeds shall be disbursed on a line -item by line -item basis in accordance with the Project Budget and subject to the conditions in this section. In no event shall City have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Project Budget. Disbursements shall be made only upon Developer's written request in the form of a Disbursement Request showing all costs which Developer intends to fund with such disbursement, itemized in such detail as City may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to City, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b) all other documents and information reasonably required by City. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by City of proceeds of the loan, Developer shall deliver to City a draw request ("Draw Request"), and all required supporting information as set forth in the Inclusionary Loan Documents or as otherwise reasonably required by City in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. City shall notify the Developer of approval or disapproval of each Draw Request within five (5) Business Days after receipt of the Draw Request, using the City's "Disbursement/Change Order Approval Notice". City shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request. 6.9 Manner of Disbursement. City may make any disbursement by check payable to Developer; or on a voucher basis; or by check payable jointly to Developer and any contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by City. 6.10 Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by City or Developer to be required to complete all matters included in 13 any line item in the Project Budget exceeds the amount allocated to that line item in the Project Budget, (b) Project costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the Loan proceeds and all other approved financing sources are or may be insufficient to pay all construction of the Project that may be payable under the Inclusionary Loan Documents or otherwise in connection with the construction, Developer shall, within ten (10) days after it receives written notice thereof from City of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to City that Developer has previously paid such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost") with fiords from a source other than the Inclusionary Loan; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Project Budget; provided, however, that the City Project Manager's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non-interest bearing account (the "Overrun Account") with City from which withdrawals may be made only with the consent of the City Project Manager but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Project Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. City shall have no obligation to make further disbursements until Developer has paid or otherwise provided for the overrun as required above. Amounts deposited by Developer in the Overrun Account for any Excess Costs shall be disbursed by City prior to the disbursement of any remaining Loan proceeds in the manner described in subsection 9.3(c). 6.11 Cost Savings. Upon completion of and disbursement for all matters covered by any line items in the Project Budget, any remaining undishursed amounts allocated to that line item shall be reallocated to "Contingency" and thereafter be available for disbursement in accordance with the terms of this Agreement. 6.12 Retainage. City will withhold a Retainage of 10% from each Disbursement for each of the Hard Cost line items of the Project Cost Breakdown (and other line items thereof designated for withholding of retainage) until all conditions to the final Disbursement of Hard Costs have been satisfied. In lieu of City's withholding Retainage, Developer can by written notice to City elect not to draw any overhead or profit as would otherwise be permitted under the Construction Contract until such time as Retainage would otherwise have been released. City shall not retain funds for building materials purchased by Developer for which Developer supplies documentation to City proving payment in full, land acquisition costs or for soft costs. 6.13 Holdback. The retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost (as determined by 14 80A-20 the City Project Manager) for "punch -list" items. Such holdback will be released when all punch - list items have been completed to the satisfaction of City. 6.14 Waiver of Disbursement Conditions. Unless City otherwise agrees in writing, the making by City of any disbursement with knowledge that any condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made, and such condition shall be conditioned to all further disbursements until fulfilled. 6.15 Modification of Disbursement Conditions and Procedures. The City Project Manager shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the contract for construction. 6.16 Other Terms and Conditions of Loan. A. The Note shall become immediately due and payable, in the event of any of the following: (1) Failure to be awarded tax credits within two (2) years of the recording date and failure to complete the Project within four (4) years of the recording date; (2) Violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; or, (3) An Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement. 6.17 Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROJECT 7.1 Use Covenants and Restrictions. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all of the rental units on the Property available to extremely low, very low and low income households at rents affordable to such households for fifty-five (55) years (except for one (1) unit for the onsite manager). The Project shall consist of sixty-nine (69) residential units. Enforceability of restrictions on the sixty-eight (68) units shall be enforced until the date that is fifty-five (55) years after the date on which the Certificate of Occupancy is issued. 7.2 Affordabilitv Levels/Unit Mix: The proposed unit mix and levels of affordability are as follows: 15 80A-21 Bedroom Size 30% AMI 40% AMI 50% AMI 60% AMI Manager's Unit Total Two Bedroom 29 0 4 1 1 35 Three Bedroom 4 0 17 7 28 Four Bedroom 1 0 0 5 6 Totals 34 0 21 13 1 69 * The affordable rents charged at the Project must comply with the standards set forth by the California Tax Credit Allocation Committee (TCAC). * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The Housing Authority of the City of Santa Ana publishes a utility allowance schedule on an annual basis, provided, however, in lieu of the utility allowance published by the Housing Authority the Developer may elect to use the California Utility Allowance Calculator to the extent allowed by TCAC. 7.3 Rent Increases: On an annual basis, the City shall provide the Developer with the maximum allowable schedule of rents for the Property which shall correspond to the maximum rent increase allowed by TCAC. In no event can Developer charge any tenant more than such amount. 7.4 Maintenance of the Propertv. Solely at Developer's expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from the City, unless such condition cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure, the City may perform the necessary maintenance and Developer shall pay all reasonable costs incurred for such maintenance. The City shall inspect the Property annually after the date of issuance of the Certificate of Completion as described in Section 17 of this Agreement. 7.5 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, disability, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement. 8. DEFAULTS AND REMEDIES 8.1 Event of Default. Failure or delay by either party to perform any term or provision of this Agreement within the time periods provided herein for such performance constitutes a 16 80A-22 default under the Agreement. If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting parry shall be entitled to cure the default in accordance with this section. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the City shall have the right to terminate this Agreement by delivery of written notice of termination to Developer. 8.2 Institution of Legal Actions. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default to recover economic damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.4 Damages. In the event that the City is liable for damages to Developer, such liability shall not exceed costs incurred by the Developer in the performance of this Agreement and shall not extend to compensation for loss of fixture income, profits or assets. 8.5 Nonrecourse Liabilitv. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, or the attached Note and Deed of Trust, and any judgment, decree or order for the payment of money obtained in any action to enforce the obligation of Developer to repay the loan evidenced by such documents shall be enforceable against Developer only to the extent of Developer's interest in the Property. 9. GENERAL PROVISIONS AND WARRANTIES As a material inducement to City to enter into this Agreement, Developer represents and warrants as follows: 9.1 Formation, Oualification and Compliance. AMCAL 1440 Santa Ana Fund, L.P. is a California limited partnership. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 17 9.2 Execution and Performance of Inclusionary Loan Documents. 9.2.1 Developer has all requisite authority to execute and perform its obligations under the Inclusionary Loan Documents. 9.2.2 The execution and delivery by Developer of, and the performance by Developer of its obligations under, each Loan Document that has been authorized by all necessary action and does not and will not: (a) require any consent or approval not heretofore obtained of any person having any interest in Developer; (b) violate any provision of, or require any consent or approval not heretofore obtained under, any articles of incorporation, by-laws or other governing document applicable to Developer; (c) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the Inclusionary Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (d) to best of its knowledge, violate any provision of any law presently in effect; or (e) constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or document to which Developer is a party or by which Developer or any of its property is bound. 9.2.3 Developer is not in default, in any respect that is materially adverse to the interests of City under the Inclusionary Loan Documents or that would have any material adverse effect on the financial condition of Developer or the conduct of its business, under any law, contract, lease or other agreement or document described in sub -paragraph (d) or (e) of the previous subsection. 9.2.4 No approval, license, exemption or other authorization from, or filing, registration or qualification with, any Governmental Authority is required which has not been previously obtained in connection with: (a) the execution by Developer of, and the performance by Developer of its obligations under, the Inclusionary Loan Documents; and (b) the creation of the liens described in the Inclusionary Loan Documents. 9.3 Financial and Other Information. To the best of Developer's knowledge, all financial information furnished to City by the Developer or any affiliate thereof with respect to Developer in connection with the Loan (a) is complete and correct in all material respects as of the date of preparation thereof, (b) accurately presents the financial condition of Developer, and (c) has been prepared in accordance with generally accepted accounting principles consistently applied or in accordance with such other principles or methods as are reasonably acceptable to City. To the best of Developer's knowledge, all other documents and information furnished to City by the Developer or any affiliate thereof with respect to Developer, in connection with the Loan, are correct and complete insofar as completeness is necessary to give the City accurate knowledge of the subject matter. To the best of Developer's knowledge Developer has no material liability or contingent liability not disclosed to City in writing and there is no material lien, claim, charge or other right of others of any kinds (including liens or retained security titles of conditional vendors) on any property of Developer not disclosed in such financial statements or otherwise disclosed to City in writing. 9.4 No Material Adverse Chance. There has been no material adverse change in the condition, financial or otherwise, of Developer since the dates of the latest financial statements furnished to City. Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to City in writing. 9.5 Tax Liability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawful extensions disclosed to City in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Developer is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to City. 9.6 Governmental Requirements. To best of its knowledge, Developer is in compliance with all laws relating to the Property and all Governmental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Environmental Quality Act and the National Environmental Policy Act and the preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements. 9.7 Rights of Others. Developer is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.8 Litigation. There are no material actions or proceedings pending or, to the best of the Developer's knowledge, threatened against or affecting Developer or any property of Developer before any Governmental Authority, except as disclosed to City in writing prior to the execution of this Agreement. 9.9 Bankruptcy. To the best of Developer's knowledge, no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Developer, nor are any of such proceedings contemplated by Developer. 19 9.10 Information Accurate. To the best of Developer's knowledge, all information, regardless of its form, conveyed by Developer to City, by whatever means, is accurate, correct and sufficiently complete to give City true and accurate knowledge of its subject matter, and does not contain any misrepresentation or omission. 9.11 Conflicts of Interest. No member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she has a direct or indirect financial interest. The Developer warrants that it neither has paid nor given, nor will pay or give, any third party any money or other consideration for obtaining this Agreement. 9.12 Nonliability of City Officials and Employees. No member, official or employee of the City shall be personally liable to the Developer in the event of any default or breach by the City or for any amount which may become due to Developer or on any obligations under the terms of this Agreement. 9.13 No Assignment. Developer expressly acknowledges and agrees that the City has only agreed to assist the Developer as a means by which to induce the construction/development of the Project. Accordingly, Developer further expressly acknowledges and agrees that this Agreement is a personal right of Developer that is neither negotiable, transferable, nor assignable except as set forth herein. Developer may assign some or all of its rights under the Agreement only with the prior written consent of the City Project Manager (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assignment by a limited partner of Developer to an affiliate, for the inclusion of tax credit investors in the Agreement, or as otherwise provided in the Deed of Trust. 9.14 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and California state law with venue in Orange County, California. 9.15 Third Parties. This Agreement is made for the sole benefit of Developer and the City and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the City hereunder or arising from any default by Developer, nor shall the City owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the construction of the Property. 9.16 Control of Property. The parties acknowledge that the City has not at anytime participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 10. CONDITIONS FOR CONSTRUCTION 10.1 Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of Governmental Agencies required in connection with the construction and conversion of the Property. 20 10.2 Commencement and Completion of Construction. The construction of the Project shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by Governmental Authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 10.3 Chance Orders. The contract for construction shall not be modified except pursuant to change orders. All change orders in excess of $10,000: (a) Shall be in writing, numbered in sequence, signed by Developer and submitted to City prior to the proposed effectiveness thereof and accompanied by any working drawings and a written narrative of the proposed change; and, (b) Shall be subject to the City Project Manager's prior written approval. 10.4 Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice and subject to reasonable job site safety rules, City and its agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the construction are stored, (b) the right to inspect all labor performed and materials furnished for the construction, and (c) the right to inspect and copy all documents pertaining to the construction. 10.5 [RESERVED] 10.6 Construction Information. From time to time during the course of the construction, within ten (10) Business Days following City's written demand therefore, Developer shall furnish requested reports of project costs, progress schedules and contractors' costs breakdowns for the construction, itemized as to trade description and item, showing the name of the contractor(s) and/or subcontractor(s), and 'including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7 Protection Allainst Liens. Developer shall diligently file a valid Notice of Completion upon completion of the construction, diligently file a notice of cessation in the event of a cessation of labor on the construction for a period of thirty (30) days or more, and take all actions reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the City by any person furnishing labor or materials to the Property, Developer shall immediately give written notice of the same to City and shall, promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay and discharge the same, (b) effect the release thereof by delivering to City a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as City may require to release City from any obligation or liability with respect to such stop notice or claim. 21 80A-27 11. COVENANTS 11.1 [RESERVED] 11.2 Qualification as Affordable Housing. As more particularly provided in the Affordability Restrictions on Transfer of Property, Developer shall use, manage and operate the Property in accordance with the requirements of California Health and Safety Code section 50052.5 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.3 [RESERVED] 11.4 [RESERVED] 11.5 Handicapped Accessibility. Developer shall comply with (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations at 24 CFR 8C; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36 in order to make the Project readily accessible to and usable by individuals with disabilities. 11.6 [RESERVED] 11.7 [RESERVED] 11.8 Lead -Based Paint. Developer shall comply with the requirements, as applicable of the Lead -Based Paint Poisoning Prevention Act. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property as required by the City of Santa Ana's adopted affirmative marketing procedures and minority outreach program. 11.10 Equal Opportunity and Fair Housing. Developer shall carry out the construction and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing. Developer must also follow the requirements of California Health and Safety Code section 33435. 11.11 Property Standards. Developer shall cause the Property to meet all applicable local, state and federal codes and ordinances, including zoning ordinances. Developer shall also cause the Property to meet the current edition of the Model Energy Code published by the Council of American Building Officials. 11.12 [RESERVED] 11.13 [RESERVED] 11.14 Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of funds under this 22 Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the rehabilitation and soft costs of the Project). The amount of each request shall be limited to the amount needed. 11.15 Eligible Costs. Developer shall use Inclusionary Housing Funds to pay costs within the Project Budget attached herewith as Exhibit E. 11.16 Records and Reports. Developer shall maintain and from time to time submit to City such records, reports and information as the City Project Manager may reasonably require in order to meet City record keeping and reporting requirements. 11.17 [RESERVED] 11.18 Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth in all applicable state regulations pertaining to conflict of interest. 11.19 Monitoring. Developer shall allow the City to conduct periodic inspections of each of the assisted units on the Property as required by the Housing Opportunity Ordinance after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within two weeks of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 11.20 Recertification of Tenant Income. (a) Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis. At a minimum, every fifth (5th) year, Developer shall require new original income documents to be submitted by tenants. (b) Developer shall allow the City to conduct periodic reviews of tenant files and files relating to affirmative marketing and outreach to insure the Project's compliance with applicable regulations and guidelines. (c) City assisted units continue to qualify as affordable housing despite a temporary non-compliance caused by increases in the incomes of existing tenants if actions satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance with this section until the non-compliance is corrected. 11.21 Other Requirements. Developer shall comply with all other applicable requirements of the Housing Opportunity Ordinance, including the following: (a) Onsite Services: The Developer shall provide on-site services that are available to the residents and shall report to the City annually the services provided. 23 (b) Coordination with the WORD Center: The Developer and the Property Manager shall coordinate with the City's WORK Center to provide services and outreach to tenants, as well as provide information on employment during the construction of the Project. (c) Tenant Satisfaction Survey: The Developer shall complete and submit to the City biennial tenant satisfaction surveys of tenants. (d) Rental Inclusionary Housing Manual: The Developer shall also maintain compliance with the City's Inclusionary Housing Manual for Rental Projects. 11.22 Controlling Covenants. If there is a discrepancy between any applicable Local, State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1 Maintenance. Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a business -like manner; shall prudently preserve and protect its own as well as the City's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected; and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Property or of any other impairment of City's interests under the Inclusionary Loan Documents. Without limiting the generality of the foregoing, and except as otherwise agreed by City in writing from time to time, Developer shall promptly and faithfully perform and observe each of the following provisions: 12.1.1 Alterations and Repair. Developer shall not remove, demolish or materially alter any Improvement without City's prior consent, except to make non-structural repairs which preserve or increase the Property's value, and shall promptly restore, in a good and professional manner, any Improvement (or other aspect or portion of the Property) that is damaged or destroyed from any cause. 12.2 Compliance. Developer shall comply with all laws and requirements of Governmental Authority (including, without limitation, all requirements relating to the obtaining of Governmental Authority approvals), all Governmental Authority approvals and all rights of third parties, relating to Developer, the Property or Developer's business thereon. 12.3 Taxes and Impositions. Subject to any property tax abatement available to the Developer, Developer shall pay, prior to delinquency, all of the following (collectively, the "Impositions"): (a) all general and special real property taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges of every kind that are assessed upon the 24 80A-30 Property (or upon the owner and/or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non-governmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on City (other than City's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any Imposition in installments (together with any accrued interest). 12.3.1 Right to Contest. Developer shall not be required to pay any Imposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to City's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair the City's interests trader the Inclusionary Loan Documents, and (c) Developer has furnished City with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 12.3.2 Evidence of Payment. Upon demand by City from time to time, Developer shall deliver to City, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to City. 12.3.3 Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City. 12.4 [RESERVED] 12.5 Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ("Project Operating Account"). Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Operating Budget, as it may be revised from time to time with prior City approval. Developer may make withdrawals from this account solely for the payment of project expenses and project fees. Withdrawals from this account for other purposes may be made only with the prior written approval of the City. 12.6 Replacement Reserve Account. Developer must establish or cause to be established a segregated replacement reserve depository account ("Replacement Reserve Account") no later than the commencement of the permanent financing period for the Project. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with Developer's Budget, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the Project that are reasonably required to preserve the Project. Developer may not withdraw funds 25 80A-31 from the Replacement Reserve Account for any other purpose without the prior written approval of the City. 13. NONDISCRIMINATION COVENANTS 13.1 Obligation to Refrain from Discrimination. Developer covenants and agrees that (a) In Use of Property. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, disability, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property. (b) In Affordable Housing Restrictions. The foregoing covenant shall (a) be included in the Affordability Restrictions on Transfer of Property, (b) run with the land, and (e) remain effective for the term of the contract (for 55 years). (c) In Employment. In construction on the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, disability, national origin, or ancestry. Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, disability, creed, religion, sex, marital status, disability, national origin, or ancestry. (d) In all Contracts. Developer shall cause the foregoing covenants to be inserted in all contracts for any work covered by this Agreement so that such provisions will be binding upon each contractor for the benefit of City, provided that the foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. 14. ENVIRONMENTAL MATTERS 14.1 Representation and Warranty. Except as disclosed in writing to the City, Developer has no knowledge (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous Materials, (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. 14.2 Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and environmental permits applicable to the construction of the Property, (b) immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, (c) keep the Property free and clear of any environmental claims or liens imposed 26 80A-32 pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. 14.3 Presence of Hazardous Materials. Developer shall not, and shall not permit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in compliance with all applicable environmental laws and required in connection with the routine operation and maintenance of the Property. 14.4 Notice of Environmental Matters. Developer shall immediately advise City in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable environmental law, (ii) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental Law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. 14.5 Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the City and its respective officers, directors, employees and agents (collectively the "Indemnitees") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be incurred by, imposed on, or asserted against the Indemnitees directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property other than resulting from the gross negligence or willful misconduct of any Indemnitee. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the Inclusionary Promissory Note or Inclusionary Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 15.1 Existence. The sole member of Developer's managing general partner shall maintain its existence in good standing under the laws of the State of California, and Developer shall provide documentation of such status annually to the City. 15.2 Protection of Lien. Developer shall maintain the lien of the Inclusionary Deed of Trust as a valid third priority deed of trust on the Property and take all actions, and execute and deliver to City all documents, reasonably required by City from time to time in connection therewith. 15.3 Notice of Certain Matters. Developer shall give notice to City, within ten (10) days of Developer's learning thereof, of each of the following: 27 (a) any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $5,000; and any litigation or claim that might subject Developer or any general partner to liability in excess of $5,000, whether covered by insurance or not; (b) any dispute between Developer and a Governmental Authority relating to the Property, the adverse determination of which might materially affect the Property; (c) any change in Developer's principal place of business; (d) any aspect of the Improvements that is not in substantial conformity with the plans or code; (e) any Event of Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default; (t) any material default by Developer or any other party under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; (g) the creation or imposition of any mechanics' or materialmans' lien or other lien against the Property which might materially affect the Property; and/or (h) any material adverse change in the financial condition of Developer. 15.4 Further Assurances. Developer shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to City all documents, and take all actions, reasonably required by City from time to time to confirm the rights created or now or hereafter intended to be created under the Inclusionary Loan Documents; to protect and further the validity, priority and enforceability of the hiclusionary Deed of Trust; to subject to the Deed of Trust any property intended by the terms of any Loan Document(s) to be covered by the Inclusionary Deed of Trust or otherwise to carry out the purposes of the Inclusionary Loan Documents and the transactions contemplated thereunder. 15.5 Annual Financial Statements. Developer shall deliver to City, within one hundred fifty (150) days after the end of each Calendar Year, (a) a certified public accountant reviewed balance sheet for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations in connection with the Property for such Calendar Year, together with all supporting schedules, (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements, and (c) a certificate of Developer's chief financial officer that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, (ii) fairly W. present Developer's financial condition, (iii) show all material liabilities, direct and contingent, and (iv) fairly present the results of Developer's operations. Developer shall also provide the City with any other annual audit reports issued by other monitoring agencies. Developer shall include in said reports, a document in the "Form of Residual Receipts Report" attached hereto as Exhibit G and incorporated herein. 15.6 Audits and Access to Records. Developer agrees that City or any of their authorized representatives shall have the right of access, upon reasonable notice and during normal business hours, to any books, documents, papers, or other records of Developer which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the affordability or recapture period ends. 15.7 Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the City every fifth (5"') year beginning January 2023. 16. OTHER COVENANTS While any obligation of Developer under the Inclusionary Note or Inclusionary Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 16.1 Default on Senior Loan. Developer shall not default on any of the Senior Loan documents, provided however, that Developer shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2 Sale or Lease of Property. Unless and until Developer has received a Certificate of Completion for the construction from City, Developer shall not sell, lease (other than to tenants meeting the requirements set forth in this Agreement), sublease or otherwise transfer all or any part of the Property or any interest therein without the prior written consent of the City Project Manager, which consent may be withheld in the City Project Manager's reasonable discretion. In connection with the foregoing consent requirements, Developer acknowledges that City relied upon Developer's particular expertise in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory completion of the construction. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) a transfer of a General Partner's interest in Developer when made in connection with the exercise by the Developer's limited partner (the "Limited Partner") of its rights upon a default by a General Partner Linder the Developer's Partnership Agreement (the "Partnership Agreement") or upon a General Partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting General Partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty 29 FOR (30) days, so long as the Limited Partner commences to take action to remove and substitute the General Partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the Managing General Partner pursuant to the right of first refusal or to one or more of the General Partners pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of the Limited Partner's interest in the Developer or of an interest in the Limited Partner. 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the construction and upon the request of Developer, or at its own election, the City shall issue a Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction. If City declines to furnish a Certificate of Completion after written request from Developer, the City Project Manager shall, within thirty (30) days after receipt of the request, provide Developer with a written statement of the reasons therefore. The statement shall contain a description of the action Developer must take to obtain a Certificate of Completion. If the reason therefore is that the Developer has not completed a minor portion of the construction, City may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with City of a bond or other form of security acceptable to the City Project Manager in the amount of the fair value of the uncompleted work. A Certificate of Completion is not evidence of compliance with or satisfaction of the Inclusionary Loan Documents or any obligation of Developer to any other party whatsoever, including any holder of a mortgage or deed of trust. A Certificate of Completion is not "notice of completion" referred to in Section 3093 of the California Civil Code. 18. INIDEMNIFICATION 18.1 Nonliability of City. Developer acknowledges and agrees that: (a) The relationship between Developer and the City is and shall remain solely that of Developer and lender. City neither undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter in connection with the construction, including matters relating to: (i) the performance of the construction work, (ii) architects, contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, or (iii) the progress of the construction; and Developer shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by City in connection with such matters is solely for the protection of City and that neither Developer nor any third party is entitled to rely on it; (b) Notwithstanding any other provision of any Loan Document: (i) the City is not a partner, joint venture, alter -ego, manager, controlling person or other business associate or participant of any kind of Developer and City does not intend to ever assume any such status; (ii) City's activities in connection with the Loan shall not be "outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and City does not intend to ever assume any responsibility to any person for the quality or safety of the Property; and (iii) City shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; (c) City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard thereon; and, (d) By accepting or approving anything required to be performed or given to City under the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 18.2 Indemnity. Developer shall defend (by counsel reasonably satisfactory to City), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the making of the Loan(s); (iii) a claim, demand or cause of action that any person has or asserts against Developer; (iv) any act or omission of Developer, any contractor, subcontractor or material supplier, engineer, architect or other person with respect to the Property; or (vi) the ownership, occupancy or use of the Property. Notwithstanding the foregoing, Developer shall not be obligated to indemnify City with respect to the consequences of any act of gross negligence or willful misconduct of City. Developer's obligations under this Section shall survive the cancellation of the City Promissory Note, release and reconveyance of the City Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. 18.2.1 Notwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result as the repayment of principal and/or interest under the Loan. 18.3 Reimbursement of City. Developer shall reimburse City immediately upon written demand for all costs reasonably incurred by City (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of City) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which City is indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty 31 80A-37 (20) days after City gives written demand to Developer and shall be secured by the City Deed of Trust. Such reimbursement obligations shall survive the cancellation of the Loan Note, release and reconveyance of the City Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1 Policies Required. While any obligation of Developer under the Loan Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: (a) worker's compensation insurance and any other insurance required by law in connection with the construction; (b) prior to commencement and following completion of the construction, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (c) upon commencement of the construction and at all times prior to completion of the construction, builder's risk -all risk insurance covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (d) public liability insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000 for "single occurrence;" (e) property damage insurance in amounts reasonably required by the City from time to time, and in no event less than $1,000,000; and (f) any other insurance reasonably required by City which is available at commercially reasonable rates. All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to City. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form and substance satisfactory to City, showing the City as encumbrance. The City shall be named as an additional insured in the policies required under subparagraphs (d) and (e). Certificates of insurance for the above policies (and/or original policies, if required by City) shall be primary and delivered within ten (10) days after demand therefore, and prior to start of any construction work. All policies 32 80A-38 insuring against damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of co-insurance. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to City evidence of renewal or replacement of such policy reasonably satisfactory to the City Attorney. 19.2 Citv Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section so long as such modifications are commercially reasonable for an affordable housing development such as the Project . 19.3 Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi -public use of any portion of the Property (collectively, "Condemnation"), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and/or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 19.4 Delivery of Proceeds to City. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the City immediately upon receipt. 19.5 Application of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions") within ninety (90) days (unless extended by mutual agreement of Developer and City) following the receipt of the Proceeds: (a) Developer shall demonstrate to City's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b) and any undisbursed loan and tax credit proceeds available to the Developer) will be adequate to repair the Improvements and to restore the fair market value of the Property, within a time period reasonably determined by City, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City of (i) plans and specifications reasonably satisfactory to City, and (ii) a construction contract in form and content, and with a contractor, reasonably satisfactory to City. (b) To the extent that the Proceeds (together with all undisbursed Loan proceeds and any other financing proceeds available to the Developer) are insufficient to accomplish the restoration required above, Developer shall deliver to City funds (the "Shortfall Funds") in the amount of such shortfall, which funds shall be assigned to City as security for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. 33 (c) Developer shall execute such documents as City reasonably requires to evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. (d) No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall either be paid to Developer or applied by City against any obligations to City that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 19.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within one hundred eighty (180) days (unless extended pursuant to Section 19.5) following the date Proceeds are received, the Proceeds shall be applied by City against any obligations to City that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by City in its sole and absolute discretion. 19.8 Restoration. Nothing in this Section 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 19.9 Condemnation; Treatment of Compensation. Subject to any superior rights of Senior Lender, Developer hereby assigns to the City, as security for all obligations to City secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation"). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of City, renders or is likely to render the Property not economically viable or if, in City's reasonable judgment Developer's security is otherwise impaired, City may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to City shall be paid to Developer or Developer's assignee. City shall have no obligation to take any action in connection with any actual or threatened condemnation or other proceeding. 19.9.1 Notwithstanding the foregoing, as long as the value of City's liens are not impaired, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 34 19.9.2 Notwithstanding the foregoing, during the tax credit compliance period for the Project, as determined under Section 42 of the Internal Revenue Code, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 19.10 Waiver of Subrogation. Developer hereby waives all rights to recover against the City (or any officer, employee, agent or representative of City) for any loss incurred by Developer from any cause insured against or required by any Loan Document, to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 20. DEFAULTS AND REMEDIES 20.1 Events of Default. The occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer: (a) Developer fails to make any payment of principal or interest under the Inclusionary Promissory Note when due, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) Developer fails to perform any other obligation for the payment of money under any Loan Document, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such obligation was not performed when due; (c) Developer fails to perform any obligation (other than the obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such failure is not cured within thirty (30) days after Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30) -day period, such failure shall not be an Event of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to cure, and thereafter diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure to completion; (d) Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; (e) The Property is materially damaged or destroyed by fire or other casualty unless Developer fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within one hundred twenty (120) days (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; 35 (f) Work on the construction ceases for thirty (30) consecutive days for any reason (other than governmental orders, decrees or regulations, acts of God or any other deity, strikes or other causes beyond Developer's reasonable control); (g) Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and/or occupying the improvements and such injunction or prohibition continues unstayed for sixty (60) days or more for any reason; (h) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the City Project Manager's prior written consent; (i) Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Developer applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Developer and the appointment continues undischarged or unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, construction or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or (i) any of the Senior Loan documents is revoked or terminated, in whole or in part and for any reason (except due to repayment of such loans), without the City Project Manager's prior written consent, or (ii) Developer defaults or otherwise fails to perform any of its duties or obligations under or in connection with any of the Senior Loan documents, subject to all applicable notice and cure periods, or (iii) any of the Senior Loan documents is amended, supplemented or otherwise modified without City's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by Developer's Limited Partner shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer. 20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, City may, at its option and in its absolute discretion, do any or all of the following: 36 80A-42 (a) By written notice to Developer, declare the principal of all amounts owing under the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 (e) shall automatically, without notice or other action on City's part, cause all such amounts to be immediately due and payable; (b) In its own right or by a court-appointed receiver, take possession of the Property, enter into contracts for and otherwise proceed with the completion of the construction by expenditure of its own funds; (c) Exercise any of its rights under the Loan Documents and any rights provided by law, including, without limitation, the right to seek specific performance and the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as City elects in its sole and absolute discretion; and, (d) Suspend or terminate the award of Inclusionary funds if Developer fails to comply with any term of such award. 20.3 Cumulative Remedies: No Waiver. City's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. The City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations; City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights. 21. MISCELLANEOUS 21.1 Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Developer, or any other claim by developer against City, in connection with the Loan or otherwise, Developer hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Developer's obligations under the Loan Documents, or (b) to claim that the existence of any such outstanding obligation, liability or claim excuses the nonperformance by Developer of any of its obligations under the Loan Documents. 37 • M 21.2 Notices. All notices, demands, approvals and other communications provided for in the Loan Documents shall be in writing and be delivered to the appropriate party by personal service or U.S. mail at its address as follows: If to Developer: AMCAL 1440 Santa Ana Fund, L.P. c/o AMCAL Multi -Housing, Inc. 2082 Michelson Drive, Suite 306 Irvine, CA 92612 Attention: Mario Turner Copy to: AMCAL Multi -Housing, Inc. 30141 Agoura Road, Suite 100 Agoura Hills, CA 91301 Attention: General Counsel Copy to Limited Partner If to City: City of Santa Ana Executive Director (CDA) 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 With a copy to: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non -receipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the Loan(s) described herein and have been or will be relied on by City notwithstanding any investigation made by either party. W3 21.4 No Third Parties Benefited. This Agreement is made for the purpose of setting forth rights and obligations of Developer and the City, and no other person shall have any rights hereunder or by reason hereof. 21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Developer and City and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Developer shall not assign any of its rights or obligations under any Loan Document without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Any such assignment without such consent shall, at City's option, be void. 21.6 Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the City and Developer with respect to the Loan and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 21.7 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as City may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Developer also waives any objection regarding personal or in rem jurisdiction or venue. 21.8 Severability of Provisions. No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable. 21.9 Headings. Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents. 21.10 Conflicts. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, this Agreement, unless otherwise expressly provided, shall prevail; provided however that, with respect to any matter addressed in both such documents, the fact that one document provides for greater, lesser or different rights or obligations than the other shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed. 21.11 Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 39 21.12 Conflict of Interest. No member, official or employee of the City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 21.13 Warranty Against Payment of Consideration. Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 21.14 [RESERVED] 21.15 Plans and Data. Where Developer does not proceed with the work and construction of the Project, and when this Agreement is terminated with respect thereto for any reason, Developer shall deliver to City any and all plans and data concerning the Property, and City or any person or entity designated by City shall have the right to use such plans and data without compensation to Developer. Such right of City shall be subject to any right of the preparer of the plans to their use. 21.16 Authority to Enter Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 21.17 Transfer of Developer Limited Partner's Interest. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, no consent shall be required of the City (and it shall not be deemed a default or an Event of Default under any of the Loan Documents), in connection with the transfer and/or the assignment by the Developer's limited partner of its interest in the Developer to an entity controlled or managed by an entity which is related to or under common control with the Developer's limited partner. 21.18 Removal of Developer's General Partner. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, the removal and/or replacement of a General Partner for cause in accordance with the Partnership Agreement shall not require the consent of the City and shall not shall not constitute a default or an Event of Default under this Agreement or the Loan Documents or accelerate the maturity of the Inclusionary Loan. If the Developer's limited partner exercises its right to remove a General Partner, City will not unreasonably withhold its consent to the substitute general partner; provided however, the consent of either the City shall not be required if the substitute general partner is an affiliate of the Developer's limited partner. The substitute general partner shall assume all of the rights and obligations of the removed general partner hereunder. :1 IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM Sonia R. Carvalho By: lean O. Attorney RECOMMENDED FOR APPROVAL Robert C. Cortez Deputy City Manager CITY OF SANTA ANA Gerardo Monet Acting City Manager (Signatures continue on following page) 41 DEVELOPER: AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership IN EXHIBITS A. Legal Description B. Affordability Restrictions on Transfer of Property C. Inclusionary Deed of Trust D. Inclusionary Promissory Note E. Project Budget F. Scope of Work / Schedule of Performance G. Form of Residual Receipts Report H. Partnership Agreement 43 80A-49 Exhibit A: Legal Description FOODIMT1 EXHIBIT "A" Legal Description All that certain real property situated in the County of Orange, State of California, described as follows Parcel 1: The Easterly 112.51 feet of the Westerly 437.51 feet of that portion of land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the Final Decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B" Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the center lines of First Street and Me Clay Street, as shown on a Map filed in Book 47, Pape 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06'40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89° 08'20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 00 06'48" West 398.34 feet to the point of beginning. Excepting therefrom, that portion of the North 71.00 feet as described in the Deed to the City of Santa Ana, recorded April 15, 1960 in Book 5196, Page 381 of Official Records. Parcel 2 A non-exclusive easement for ingress and egress over the South 25 feet of the Westerly 325 feet of that portion of the land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 890 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06'40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89° 08'20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06'48" West 398.34 feet to the point of beginning, Parcel 3: The Westerly 175.00 feet of the Easterly 375.00 feet of that portion of the land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast comer of said land of Croddy Corporation; Thence South 89° 08' 20" West 812.54 'feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06'48" West 398.34 feet to the point of beginning. 80A-51 Excepting therefrom, the South 21 feet of the North 71 feet thereof Parcel 4: A non-exclusive easement for ingress and egress over the South 25 feet of that portion of the land allotted to N. O. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest comer of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Boole 4860, Page 4 of Official Records; Thence South 0° 06'40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08'20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06'48" West 398.34 feet to the point of beginning. Excepting therefrom, the Easterly 375.00 feet. Parcel 5: A non-exclusive easement for ingress and egress, for sewer lines, public utilities and drainage and the maintenance of these items over the South 25 feet of the following described land: The Westerly 437 feet of that portion of the land allotted to N. O. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest comer of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 00 06'40" East 397.90 feet to the Southeast comer of said land of Croddy Corporation; Thence South 89° 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06'4811 West 398.34 feet to the point of beginning. Assessor's Parcel Number: 011154-43 80A-52 Exhibit Bo. Affordability Restrictions on Transfer of Property Fgerllilff FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Housing Division Manager AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (Address: 1440 East First Street, Santa Ana, California) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership ("Developer") and the City of Santa Ana, a charter city and municipal corporation (the "City"). RECITALS: A. Developer is the owner of that certain real property located at 1440 East First Street, Santa Ana, California (the "Property"), more particularly described in Exhibit A, which is attached hereto and incorporated herein by this reference. B. The City's Housing Opportunity Ordinance ("Ordinance") was originally adopted by the City Council on November 28, 2011 (Ordinance No. NS -2825), and is codified in Article XVIII.1 of the Santa Ana Municipal Code ("SAMC"). The Ordinance was amended by the City Council on September 1, 2015 (Ordinance No. NS -2881), and on October 6, 2015 (Ordinance No. NS -2885). The Ordinance established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to SAMC section 41-1904(c), developers may pay an in -lieu fee in certain instances to satisfy the inclusionary requirements. These funds are deposited into the Inclusionary Housing Fund, as defined by SAMC section 41-1901, and are to be used to increase and improve the supply of affordable housing per SAMC section 41-1909. C. For the purpose of providing sixty-nine (69) units of housing that will be affordable to Extremely -Low, Very -Low and Low Income households ("Assisted Units"), the Developer and the City have entered into that certain Loan Agreement, dated on or about the date hereof (the "Inclusionary Loan Agreement") to which these Restrictions are attached as Exhibit G, which, along with all of its attachments, is incorporated herein by this reference (any capitalized term that is not otherwise defined in these Restrictions shall have the meaning ascribed to such term in the Inclusionary Loan Agreement). D. In furtherance of the Inclusionary Housing Program guidelines, Developer has applied to the City for a loan with which to: 1. provide deeper affordability and construct the improvements to the Property, and 2. thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. E. The City, on certain terms and conditions, desires to make such loan ("Inclusionary Loan") to Developer in order to make possible the rehabilitation and construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. F. The Inclusionary Loan Agreement, Inclusionary Deed of Trust, and Inclusionary Promissory Note, dated concurrently herewith (collectively the °Inclusionary Loan Agreements") are entered into for the purpose of providing for affordable very low income residential rental units in the City of Santa Ana pursuant to the Inclusionary Funds regulations and guidance. NOW, THEREFORE, CITY AND OWNER COVENANT AND AGREE AS FOLLOWS: 1. Definitions "Affordable Housing" means the total housing costs paid by a qualifying household, which shall not exceed the fraction of gross income specified, as follows, in accordance with Sections 50052.5 and 50053 of the Health & Safety Code: Very Low -Income Households. Thirty (30) percent of the income of a household earning fifty (50) percent of the Orange County median income adjusted for family size appropriate for the unit. Low -Income Households. Thirty (30) percent of the income of a household earning seventy (70) percent of the Orange County median income for for -sale units, and thirty (30) percent of the income of a household earning sixty (60) percent of the Orange County median income for rental units, adjusted in either case for family size appropriate for the unit. In the event of a conflict between the fractions specified in this definition and those found in Sections 50052.5 and 50053 of the Health & Safety Code, the fractions specified by State law shall control. "Affordability Period" also referred to as "Term of Affordability", shall be fifty-five (55) years from date of issuance of Certificate of Completion. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the California Tax Credit Allocation Committee (TCAC). "Agreement" means this Affordability Restrictions on Transfer of Property between the City and the Owner affecting real property. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Inclusionary Funds. "Building Permit" means the building permit(s) issued by City and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Inclusionary Loan Agreement and Inclusionary Deed of Trust recorded in the Official Records of the County. "Closing Statement" means the final statement of Owner's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Developer" or "Owner" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Event of Default" has the meaning set forth in Section 20.1. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et secs., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. Hazardous Material shall not include (i) construction products, household cleaners and office materials of the type and quantity ordinarily used in the normal construction, operation and maintenance of properties similar to the Project or (ii) small amounts of household mold to the extent promptly remediated upon discovery. "HCD" means the California Department of Housing and Community Development (HCD) and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting). "Inclusionary Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit C to the Inclusionary Loan Agreement, to be executed by Owner pursuant to Section 5.13.2 in order to secure the Inclusionary Loan Note. "Inclusionary Loan" means the loan to be made by the City to Owner in the principal amount of Two -Million, Six Hundred Thousand Dollars ($2,600,000.00) in accordance with this Agreement. "Inclusionary Promissory Note" means that certain promissory note in the original principal amount of $2,600,000 in the form attached as Exhibit D to the Inclusionary Loan Agreement, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the Inclusionary Loan through residual receipts as further described in the Inclusionary Promissory Note. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non- recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 18.2. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. 4 80A-57 "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Inclusionary Loan Agreement" means the Loan Agreement regarding the loan of Inclusionary funds between the City and the Owner, and any attachments thereto. "Inclusionary Loan Documents" means, collectively, the Inclusionary Loan Agreement, Inclusionary Promissory Note, Inclusionary Deed of Trust and this Agreement, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by TCAC. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HCD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMP. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the City Deed of Trust" means the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Owner pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached as Exhibit G to the Inclusionary Loan Agreement, as modified from time to time in accordance with the Inclusionary Loan Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 1440 East First Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Restricted Units" means the units restricted as affordable by the City Documents. "Scope of Work" means the detailed statement of the work to be performed by Owner on and to the Property pursuant to this Agreement, which is attached as Exhibit H to the Inclusionary Loan Agreement. "Schedule of Performance" means the detailed schedule setting forth timeframes for certain tasks, which document is attached as Exhibit I to the Inclusionary Loan Agreement. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender concurrent to the Inclusionary Loan for payment of a portion of the acquisition and rehabilitation costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Senior Loan Deed of Trust" means the first deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by TCAC. 2. Use of the Property. Owner covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property of any part thereof) that Owner, such successors, and assigns shall use the Property to provide affordable rental housing, for Very Low Income households, as provided in the Inclusionary Loan Agreement and these Restrictions 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. a. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all rental units on the Property available to extremely -low, very low and low income households at rents affordable to such households for fifty- five (55) years from the effective date of the issuance of the Certificate of Completion. b. The Project shall consist of approximately sixty-nine (69) units of which there will be six (6) four-bedroom units, twenty-eight (28) three-bedroom units, and thirty-five (35) two-bedroom units (one being a manager's unit). The affordability mix for the Project is as follows: Bedroom Size 30% AMI 40% AMI 50% AMI 60% AMI Manager's Unit Total Two Bedroom 29 0 4 1 1 35 Three Bedroom 4 0 17 7 28 Four Bedroom 1 0 0 5 6 Totals 34 0 21 13 1 69 C. Affordable rents shall be calculated and governed as provided by the California Tax Credit Allocation Committee (TCAC). Rental increases shall be in conformance with federal and state law. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent tables published by TCAC. 3.2 Rent Increases: A. On an annual basis, the City shall provide the Developer with the maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units for the Property) which shall correspond to the maximum rent increase allowed by TCAC. B. Developer, its successors and assigns shall not charge rents for the Restricted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by TCAC. The City Manager, or designee, shall notify Owner in writing of the adjusted allowable maximum incomes and rents as allowed by TCAC. C. In no event shall the rent charged to the tenant of a Restricted Unit be more than that amount of the rent as published by TCAC, as amended from time to time (currently $604 for a two-bedroom unit, $700 for a three-bedroom unit, and $780 for a four-bedroom unit). D. Utility allowances must be deducted from the Maximum Gross Monthly Rent. Utility allowances are deducted from rents using the following amounts set annually by the Housing Authority of the City of Santa Ana, provided, however, in lieu of the utility allowance published by the Housing Authority the Developer may elect to use the California Utility Allowance Calculator to the extent allowed by TCAC. 4. Miscellaneous Provisions: A. Owner shall adopt and include as part of its Management Plan (described in subsection G below), written tenant selection policies and criteria for the Units that meet the following requirements: (a) Are consistent with the purpose of providing housing for Extremely -Low, Very -Low and Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to ,:1 N .1 perform the obligations of the lease; (c) Reserved; (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the City; and (f) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Owner, the City shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re -renting of any Restricted Units. B. Owner, its successors and assigns, shall not refuse to lease a emit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a federally funded tenant -based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable tenant -based assistance document. C. Any lease of any of the Units must be for not less than one year, unless by mutual agreement between the tenant and the Owner. Should the tenant and Owner agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Owner. The lease may not contain any of the following provisions (in which references to "Owner" shall mean the Owner, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. D. Owner, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. E. Owner shall maintain the improvements on the Property in compliance with all applicable housing quality standards and state and local code requirements and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Owner shall also maintain in a healthy condition any landscaping planted on the Property. F. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. G. Not later than the closing for the construction loan for the Project, Owner shall submit to the City Project Manager a Management Plan in a form that is acceptable including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the City Project Manager not later than the time for the issuance of a certificate of occupancy for the Project. Owner shall manage the Restricted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the City Project Manager, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Owner shall submit the name and qualifications of the proposed Management Agent. The City Project Manager shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. FOODIXIIN N Management Agreement. Owner shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Owner and Management Agent. (c) Annual Budget and Projected Cash Flows. Prior to the issuance of a certificate of occupancy for the Project, and annually thereafter not later than one hundred fifty (150) days after the close of each calendar year thereafter, Owner shall submit a projected operating budget and cash flow to the City Project Manager. The budget and cash flow shall be in a form that is reasonably acceptable to the City Project Manager. (d) Tenant Selection Policies. Owner shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. H. If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, City shall provide Owner with notice thereof which notice shall include a reasonable cure period not less than thirty (30) days. If the deficiencies have not been cured within the cure period provided in the City notice Owner shall change the management agent or the practices complained of, upon receipt of written notice from the City Manager. The City Manager may require Owner to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Owner without penalty, upon thirty (3 0) days prior written notice, at the direction of the City Manager. Within ten (10) days following a direction of the City Manager to replace the management agent, the Owner shall select another management agent or make other arrangements satisfactory to the City Manager or designee for continuing management of the units. I. The covenants established in these Restrictions and any amendments hereto approved by the City, and Owner shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns. These Restrictions shall remain in effect for fifty-five (55) years. In its discretion, the City may defer repayment of the Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Restricted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. J. Reserved. K. Records and Audits. a. Owner shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with NSP funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Owner's outreach programs to minority-owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (2) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the date on which Owner obtained ownership of the Property; (3) any other reports issued by other monitoring agencies. b. All records pertaining to each calendar year of Inclusionary funds must be retained for the most recent five year period, except that for rental housing projects, records may be retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates. Owner shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the State, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. C. If so directed by the City or HUD upon termination of the Loan Agreement, Owner shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City or HUD, as depository. d. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, or HUD, on reasonable prior notice, for the purpose of examination or audit. e. The City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Owner shall reasonably cooperate with City in performing such audit. f Owner shall permit the City to perform an Annual Physical Inspection of the Property with at least seven (7) days notice. Owner shall cooperate with this Inspection and shall take all steps necessary to quickly correct any code deficiencies identified during the Inspection. L. The City is the beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the l • community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. M. The covenants and agreements contained herein shall run with the land and not be personal obligations of Owner. Upon the sale, conveyance or other transfer of the Property (a "Transfer") and the assumption of the obligations hereunder by a transferee, Owner's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. N. The Loan Agreement and all of its attachments shall be enforceable by the City in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City Note and the City Deed of Trust provide a means of enforcement by the City if Owner is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land. .O M • IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Maria D. Huizar Cleric of the Council APPROVED AS TO FORM Sonia R. Carvalho City Attorney By: Ryan O. Hodge Assistant City Attorney RECOMMENDED FOR APPROVAL Robert C. Cortez Deputy City Manager CITY OF SANTA ANA Gerardo Monet Acting City Manager {Signatures continue on following page} FOODINT",, DEVELOPER: AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership IN Exhibit Co. Trust ... FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Development Agency City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M-26) Santa Ana, California 92702 Attn: Housing Division Manager INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this day of February, 2017, by between AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership (the "Trustor"), , a (the "Trustee"), and the City of Santa Ana, a charter city and municipal corporation (the 'Beneficiary"). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1440 East First Street, Santa Ana, California (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Inclusionary Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain Inclusionary Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreement is on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of this Trust, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or • A • 1 buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of Two Million Six Hundred Thousand Dollars ($2,600,000.00) (the "Inclusionary Promissory Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: L The Agreement. This Deed of Trust is executed and delivered, along with the Inclusionary Promissory Note and the Inclusionary Loan Agreement, to benefit the Property. A copy of said Inclusionary Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or Inclusionary Promissory Note secured by this Deed of Trust. 2. Truster's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the City Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place except that the City's Affordability Restrictions on Transfer of Property shall be subordinated to Trustor's Senior Loan for acquisition. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Truster's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to all applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority FOODIM11 over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. 80A-71 Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Inclusionary Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security upon reasonable prior notice during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 2082 Michelson Drive, Suite 306, Irvine, CA 92612, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Division Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County, 16. Severability. In the event that any provision or clause of this Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the Inclusionary Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the City Loan Note are declared to be severable. 80A-72 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the Inclusionary Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include any transaction not considered a "transfer' under Section 16.2 of the Loan Agreement. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the Inclusionary Promissory Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may involve the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any cure of any default made or tendered by Trustor's limited partner shall be deemed to be a cure by Trustor and shall be accepted or rejected on the sarne basis as if made or tendered by Trustor. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustor's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if. (a) Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the Inclusionary Promissory Note has occurred; (b) Truster cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Tmstor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Truster's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Inclusionary Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, Inclusionary Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. • A .� (Signatures on Following Page) IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date fust written above. AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership In Exhibit Do. Inclusionary Promissory Note 80A-77 INCLUSIONARY HOUSING FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (1440 East First Street, Santa Ana, California) $2,600,000.00 February , 2017 Santa Ana, California Principal Amount of Loan FOR VALUE RECEIVED, AMCAL 1440 Santa Ana Fund, L.P., a limited partnership ("Borrower"), hereby promises to pay to the CITY OF SANTA ANA, a charter city and municipal corporation ("City"), or order, a principal amount not to exceed TWO -MILLION, SIX HUNDRED THOUSAND DOLLARS ($2,600,000.00) or so much thereof as may be advanced by the City to the Borrower, due and payable with 3% simple interest by residual receipts over the fifty-five (55) year term, pursuant to the Inclusionary Loan Agreement (said "Agreement') between Borrower and the City dated concurrently herewith, which is incorporated herein by this reference. The Note Amount shall bear simple interest at the rate of 3% simple interest per annum, from the date of issuance of the Certificate of Occupancy. This loan is made pursuant to the "Housing Opportunity Ordinance In -Lieu Fee Program" or "In -Lieu Fees" with money funded through the Program as "Inclusionary Housing Funds". Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to City hereunder is subject to the terms of said Agreement, the Affordability Restrictions on Transfer of Property, Inclusionary Deed of Trust and this Note. Said documents are public records on file in the offices of the City, and the provisions of said documents are incorporated herein by this reference. This Note, said Agreement, the Affordability Restrictions on Transfer of Property, and the Inclusionary Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Agreement. This Note evidences the obligation of Borrower to the City for the repayment of the Inclusionary Loan of Inclusionary Funds attributable to the acquisition, development, adaptive reuse and construction of the Property, and related soft costs. This Note is payable at the principal office of City of Santa Ana — Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Attn: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 2. Definitions. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "Agreement" means the Inclusionary Loan Agreement between the City and the Developer, and any attachments or amendments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Inclusionary Housing Program, and the Inclusionary Funds. "Area Median Income" means the median income figures for Orange County as published by the California Department of Housing and Community Development (HCD). Also may be referred to as "AMI" herein. "Borrower" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Inclusionary" shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the Inclusionary Deed of Trust. "City's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50%) of the total Residual Receipts from the Property as further described in Section 5 hereof. "Closing Costs" shall mean: (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Inclusionary Housing Program" has the meaning set forth in the Recitals above. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and/or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal and/or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "Housing Successor Agency Loan" means the loan made by the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency to the Developer in the original principal amount of $6,195,000. "Operating Expenses" shall mean the sum of the following: (i) payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) a property management fee not to exceed 8% of gross rents; (iii) Owner Administration Fee not to exceed 5% of gross rents; (iv) deposits into required reserves; (v) any deferred developer fee; (vi) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms -length transactions for similar services in Orange County, California area. 3 ,:1 M :1 (vii) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement"). "Inclusionary Deed of Trust" shall mean the Inclusionary Deed of Trust in favor of the City, securing the Inclusionary Loan, substantially in the form attached to the Agreement as Exhibit D, which is incorporated herein by this reference. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Inclusionary Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. "Inclusionary Funds" shall mean the money provided under the Inclusionary Housing Program for the construction of the rental units hereunder. "Property" shall mean that property located at 1440 East First Street, Santa Ana, California. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and/or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan, except for the payoff of the conventional lender's acquisition loan for the Property.. "Refinancing Proceeds" shall be disbursed as set forth in Section 6 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses from the same building, applicable to each such year to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty-five percent (35%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. Notwithstanding anything to the contrary contained herein, a "Sale" shall not include any transaction not considered a "transfer' under Section 13. "Senior Loan" shall mean any senior loan made to Borrower, for payment of Acquisition and/or Rehabilitation Costs, and shall include any subsequent loan that refinances said Senior Loan. "Term" the term for repayment of this Note shall mean fifty-five (55) years from the date of recording of the Deed of Trust securing the Note. "Term of Affordability" the term of affordability shall be fifty-five (55) years. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. 3. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 6 (Refinancing Proceeds), 7 (Sale Proceeds) and 9 (Accelerated Loan Repayment) of the Agreement. 4. Ooeratin¢ Capital Improvement Loan. If the replacement reserve account ("reserves") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to payment of said loan. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repayment/ Residual Receipts. a. Commencing on the date one hundred fifty (150) days after the close of the initial Calendar Year following the issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter the Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note or the City's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the Issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter, the Borrower shall submit to the City an audited financial statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make an Inclusionary Loan payment then due. FOODIX46y c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of principal. At least fifty percent (50%) of the Residual Receipts shall remain with the Borrower, with all Residual Receipts remaining with Borrower to the extent the Inclusionary Loan has been fully repaid. d. Borrower shall retain fifty percent of the Residual Receipts. The other percent (50%), the City's Percentage of the Residual Receipts, shall be divided with thirty percent (30%) to be applied to the Inclusionary Loan, and seventy percent (70%) to be applied to the payment of the Housing Successor Agency Loan. As Borrower repays its loans, the payment percentage applied to the remaining loans shall increase. e. The Residual Receipts payment shall be made not later than one hundred fifty (15 0) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the principal balance of the loan. 6. Loan Repayment from Refinancing Proceeds. The Borrower shall make a loan payment to the City from every Refinancing that occurs during the term of this Note (other than refinancing of the conventional lender acquisition and/or construction loan) not to exceed the outstanding balance of principal on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City the City's Percentage of the Refinancing Proceeds of which City Percentage shall be used thirty percent (30%) to repay the Inclusionary Loan, and seventy percent (70%) to repay the Housing Successor Agency Loan to the extent of the outstanding balance on this Note. At least fifty percent (50%) of the Refinancing proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Refinancing Proceeds are insufficient to repay the Loan in full. Loan Repavment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on this Note subject to Section 14 herein, to the City from any Sale that occurs during the term of the Inclusionary Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next, the Borrower shall pay to the City the City's Percentage of the Refinancing Proceeds of which City Percentage shall be used thirty percent (30%) to repay the Inclusionary Loan, and seventy percent (70%) to repay the Housing Successor Agency Loan, and the amount necessary to pay any deferred developer fee in full, not to exceed the outstanding amount of principal due on this Note. At least fifty percent (50%) of the Sale Proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to FOOMMOOF the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. S. Accelerated Loan Pavment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 13 hereof; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in firll the Inclusionary Loan, the City approves such sale and the purchaser assumes the balance of the Inclusionary Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the Inclusionary Loan, the City approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the Loan Documents or the Senior Loan Documents. c. Any default (subject to any applicable notice and cure provisions by Borrower as to any other loan or loans by City to Borrower with respect to the Property; or d. The date that is fifty five (55) years after the date of execution of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Term of this Inclusionary Note. 9. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at any time without penalty, however the Affordability Covenants and Restrictions still remain for the entire Affordability Period of fifty-five (55) years. 10. Lawful Money. Principal is payable in lawful money of the United States of America. 11. Application of Payments; Late Charges. a. Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal, due the City pursuant to this Note, and the balance, if any, to the payment of principal. FJ A b. If any payment is not received by the City within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4%) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 12. Securi This Note is secured by the recorded Deed of Trust. 13. Acceleration by Reason of Transfer or Financing. a. In order to induce City to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation or limited liability company that is wholly owned by the Borrower or its affiliates 8 FOOMMOOP and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the Inclusionary Loan shall be repaid to the City at the time of each Refinancing or partial Refinancing. Additionally, a "Transfer" shall not include any transaction not considered a "transfer' under Section 16.2 of the Loan Agreement, 14. Event of Default. Subject to the provisions of Sections 23 hereof, the occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Covenants and Restrictions within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Bon -ower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after any applicable notice has been provided and the expiration of any applicable cure period therefore, if any, provided therein. 15. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4%). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 16. Attorney Fees. If this Inclusionary Promissory Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. FOOMMOR 17. Severability. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 18. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 19. Non-recourse. The Inclusionary Loan is a nonrecourse obligation of the Borrower. Neither Borrower, nor its partners nor any other party shall have any personal liability for repayment of the Inclusionary Loan or for any other amounts under any of the documentation evidencing, securing or describing the Inclusionary Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the Inclusionary Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 20. Subordination. It is hereby expressly agreed and acknowledged by Borrower and City that the Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust. 21. Notice of Default. a. Subject to the applicable cure periods set forth in Section 14 and subject to the further provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower roust immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. b. The City shall give written notice of default to the Borrower specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. C. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such tune, correction or remedy with reasonable diligence, provided such tune, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the City to be reasonably necessary to correct the default). 10 FOOMM46h d. Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of fifteen (15 Business Days after such notice is received within which to cure the default prior to exercise of remedies by City under this Note and the Deed of Trust. f If a non -monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (18 0) days after the first notice of default is given. 22. Insurance and Condemnation. In the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Borrower shall have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the Inclusionary Loan in balance and rebuild the Property in a manner that provides adequate security to City for repayment of the Inclusionary Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) City shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Inclusionary Loan in a manner that provides adequate security for repayment of the remaining balance of the Inclusionary Loan. 23. Force Maieure. Notwithstanding specific provisions of this Note, performance 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 or other deities; acts of the public enemy; 11 FOODIX40FOO epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 24. Assignments. The City, and the assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 12 This Inclusionary Promissory Note is hereby agreed to and executed on the date first set forth above. "BORROWER" AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership 0 UM 13 ' • • ' Exhibit Ee. Project USES , I-MALPRO). =[O5P LaLOST31TION � lanand co:a nnf Valuevawa 4s60,000 oemotRlon 375,000 Site Re uddlauon 175,000 Total 5,050,000 Acquldtlon Loan Fee 38,430 Acquisition legal 19,375 Offsite Improvements 193,393 Total Acqulslaon Cast 251,198 Total land Cort/ Acquisition Cost 5,301,198 �WewWoksmfLCARN: Site Work 1,874,880 Structures 9,900,677 General Requirements 759,490 Contractor Overhead 5zE,707 Contractor Pahl, 526,707 Other General Liability In surance Olien(SpecifO Total New Construction Los[8 13,588,461 ARGNIiffT�IN4 Pefr' ,- Oeslgn 520,550 Supe M.a Total Architectural Costs 520,550 Total Survey&Engineering 1,130,140 Cdnetruction Loan Interes&FEES Cleland Rion Loan Interest 174,879 Cleland.. fee 190,879 Credit LnM1ancemen Fae Readt/Applkallon Pontl Premium 15,000 Taxes 157,181 e 179,148 Told & RecordingIng S7,00.Oter: (Cl.sgg Casts( 20,000 .,her: Total Construotlbn Interest Fees 1,493,904' AFFIN_G Leon Orlglnatlan fee LeonANEl.11.1 69,058 Credit Enhancement/APPllcatlon Fee Title & Reaortling 10,000 Taxa Insensate 5,000 Other (Closing costs) - 70,000 other: speorM Total Permanent Financing Costs 108,055 Subtotals Forward 22,142,308 LEGACEEES Lender Legal Pald byApplicant 75,000 Other'. (Partnershe Legal) 150,000 Total Attomey Costs 225,000 Rrves RentReseeal Rele Capltalizetl Part serves Operating Reserve Ne 303,015 Other(Transition se N) Total Reserve, Costs 203,015 APPR 15AL Total Aptinge torts 15,000 Total CanNngeCost OTNEHPg01ECTCRs'cXT§ TCAC/CDLAC Fees 88,542 uAllocation/Monitoring EnsLosim omental Audit Fees 1,332,45] 22,457 Pecmit ProcessingF es Permit Frocessing Fees 706.398 Capital F Marketlng 15,000 Furnishings 75,899 Matkat Study 23,150 blas 60,000 Set CasiC nlllnllnl Set Cast COntingenry 53,400 Other: Relocation 9 955,161 Other:(Nerd Calls Contingency) 715,593 Other: Fretlevelopmenl lnteresC/HOIdIng Costs) 715,804 Other: Other: Other: Other: Total amen torts 5,180,744 SV7TOTAL PROIER COSI 37,7fi6047 OWeCOPI Overlie Neva er Overs cad/Pro TR 1,899,909 Non ProfitPartner Frofll r 100,000 PIO)eca Adminlsnation ct Ad Broker Fees Po d tog ga1,1sd Par[ Const OverslgM1tby Nevelaper Other (Specify) Total Oevelopar Costs 1,999,999 TOTAL PROJECT COSTS 29,766,046 Exhibit Fee Scope of Work /Schedule of SCOPE OF DEVELOPMENT The development is a 69 -unit affordable rental apartment community that will serve family households. The property address of the subject site is 1440 East First Street in the City of Santa Ana. The development site consists of approximately 2.16 acres. The project will contribute to improving the neighborhood and will provide much needed affordable family housing to the community. The units are affordable to households earning between 30% and 60% Area Median Income (AMI). The unit mix includes thirty-four (34) 2 -bedroom, twenty-eight (28) 3 -bedroom, and six (6) 4 -bedroom units. Of the 69 total units, 68 will be reserved for affordable households and 1 unit will be an unrestricted Manager's Unit. The two, three, and four-bedroom unit offer contemporary living for residents including balconies/patios, personal storage space, modern kitchens and bathrooms. To provide the most convenient living environment for families, all kitchens have garbage disposals, dishwashers and other amenities. The appliances will be energy efficient models to further reduce costs for residents. The project will achieve a Leadership in Energy and Environmental Design (LEED) Silver designation. The building design is contemporary and will utilize high standards of construction and sustainable design. The buildings are three stories in height and oriented towards First Street with the primary building lobby located at the ground level. The residential units will be located within six buildings, each constructed as a Type V three story tuck -under design. A community laundry building is also provided at the ground level. The resident parking includes garages and surface parking spaces. On-site amenities include a community room, outdoor gardens and amenity space including tot lots/play areas for children; outdoor seating, BBQ, and planters. The community room will be incorporated into the development, providing a computer laboratory, kitchen, activity room for resident activities, and office space for property management and social services staff. The convenient location of the development will provide resident access to public transportation, parks, markets, a public school, medical clinic and retail outlets. :1 M • Proposed Development Schedule: EVENT DATE Community Redevelopment and Housing Commission 3/28/2016 City Council 4/19/16 Site Acquired 8/30/2015 Begin Entitlements 8/3/2015 City Staff Approval of Entitlements 3/28/2016 9% Tax Credit Application 3/1/2017 9% Tax Credit Award 6/30/2017 Begin Construction Documents 7/1/2017 Construction Financing Secured 8/1/2017 Tax Credit Investor Secured 8/1/2017 Begin Construction/Building Permit Issued 11/1/2017 Construction Complete 5/1/2019 Leasing Process Begins 5/1/2019 Project Fully Leased 8/1/2019 . M Exhibit G: Form of Residual Receipts = ... EXHIBIT G FORM OF RESIDUAL RECEIPTS REPORT Community Redevelopment Agency of the City of Santa Ana Residual Receipts Report for the Year Ending Date Prepared Please complete the following information and execute the certification at the bottom of this form. Annual Project Revenue Please report Annual Project Revenue for the year ending on the following lines: Rent Payments (including Section 8 tenant assistance payments, if any) Interest Income (do not include interest income from replacement and operating reserves nor interest income on tenant security deposits) Additional Income (for example, vending machine income, tenant forfeited deposits, laundry income not paid to the residents' association) Total Annual Project Revenue (Add lines 1, 2, and 3) Operating Expenses' Please report Operating Expenses incurred for the year ending on the following lines: Operating and Maintenance Expenses Utilities Property Management Expenses and On -Site Staff Payroll Administrative Expenses Property Taxes Insurance (5) (6) (7) $ (8) $ (9) $ (10) $ Other Expenses (11) Please list these expenses: Total Annual Operating Expenses for the Housing Project (12) (Add lines 5, 6, 7, 8, 9, 10, and 11) Net Operating Income (Subtract Line 12 from Line 4) (13) Do not include expense unrelated to the operation of the Rental Portion of the Project, such as depreciation, amortization, accrued principal and interest expense on deferred payment debt, or capital expenditures. Additional Cash Flow Payments Obligated First Mortgage Debt Service Payments (as approved by the Agency and (14) other parties that may have such approval rights) and Obligated Secondary Subordinate Debt Service Payments (as approved by the Agency and other parties that may have such approval rights) Scheduled Deposits to Reserves (as approved by the Agency) (15) Additional Payment Obligations (such as partnership management fees, deferred (16) developer fees, or repayments on loans to partners, as approved by the Agency to have priority over Residual Receipt Payment to the Agency) Total Additional Cash Flow Payments (Add lines 14, 15, and 16) (17) Residual Receipts for Year Ending (18) $ (Subtract Line 17 from Line 13) Percentage of Residual Receipts to be Paid to the Agency (as shown in the (19) % Promissory Note by and between the Agency and Borrower dated Amount Payable to the Agency (Multiply Line 18 by Line 19) (20) The amount payable to the Agency listed on Line 20 is subject to payment according to the terms of the Promissory Note by and between the Agency and Borrower dated . If Line 20 is $0.00 or negative, you owe nothing to the Agency this year. If Line 20 is a positive number, remit check payable to and attach to this report. A .O • Exhibit He. Partnership Agreement FOODTM.. NO PARTNERSHIP INTEREST REPRESENTED BY THIS AGREEMENT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER THE CALIFORNIA CORPORATE SECURITIES LAW OF 1968, AS AMENDED, IN RELIANCE UPON EXEMPTIONS FOR SALES NOT INVOLVING ANY PUBIC OFFERING AND UPON THE REPRESENTATION THAT SUCH PARTNERSHIP INTERESTS WILL NOT BE TRANSFERRED UNLESS AN OPINION OF COUNSEL IS GIVEN, SATISFACTORY TO THE GENERAL PARTNER AND ITS COUNSEL, THAT REGISTRATION IS NOT REQUIRED. LIMITED PARTNERSHIP AGREEMENT OF AMCAL 1440 Santa Ana Fund, L.P. This Limited Partnership Agreement of AMCAL 1440 SANTA ANA FUND, L.P. ("Agreement") is entered into as of September 1, 2015 between AMCAL Multi -Mousing Two LLC, a California limited liability company, as general partner ("Administrative General Partner"), and the parties signing at the end of this Agreement, as limited partners ("Limited Partner" or "Limited Partners"). The Partners agree as follows: 1. Formation. The Limited Partners and the General Partner hereby enter into a Limited Partnership ("Partnership") pursuant to the Uniform Limited Partnership Act of 2008, Corporations Code Section 15900 and following, ("the Act") and the rights and liabilities of the Partners shall be as provided under California Law, except as set forth below. 2. Name. The name of the Partnership is AMCAL 1440 SANTA ANA FUND, L.P., a California Limited Partnership. 3. Principal Place of Business. The principal place of business of the Partnership is 30141 Agoura Rd., Suite 100, Agoura Hills, CA 91301, 4. Purpose. The purpose of the Partnership shall be to purchase, hold, develop, manage, improve, lease, sell that certain real properly, described on Exhibit "B" ("Partnership Property") and all related activities. 5, Term, The Partnership shall begin when the Certificate of Limited Partnership is filed with the Secretary of State as required by the Act and shall continue until the first to occur of: (a) December 31, 2045 (b) dissolution by mutual agreement of the General and Limited Partners (c) termination as hereinafter provided, or (d) by operation of law, Initlal LP Ag[eement - Santa Ana 9. 1. 1$9. 1. 15 a. 80A-100 6. Capital Contributions. 6.1. initial Capital. The Administrative General Partner shall contribute administrative services and not money or other property to the Partnership. The initial capital contribution of the Limited Partners shall be the total amount shown on Exhibit "A" under the heading "Initial Contribution". The Administrative General Partner shall also hold Limited Partners' interests to the extent shown on Exhibit "A" hereto. 6.2. Additional Limited Partners. If all the Limited Partners do not respond to a call for additional funds when due or for additional funds pursuant to paragraph 6.8, the Administrative General Partner shall be authorized to admit additional Limited Partners. Such Limited Partners shall become parties hereto by executing such documents as the Administrative General Partner may require pursuant to which they agree to be bound by this Agreement. The admission of additional Limited Partners shall not cause a dissolution of the Partnership. 6.3. Capital Accounts. A "Capital Account" shall be maintained for each Partner. The Capital Account for each Partner shall be equal to such Partner's initial capital contribution increased by: (i) cash and the fair market value of any property subsequently contributed to the Partnership by such Partner (net of liabilities assumed or taken subject to by the Partnership, pursuant to the provisions of Section 752 of the Internal Revenue Code of 1986 "[IRC"]) and (ii) such Partner's allocable share of Partnership income and gains, including any tax-exempt income; and decreased by: (a) cash and the fair market value of property distributed to such Partner (net of liabilities assumed or taken subject to by such Partner pursuant to the provisions of IRC Section 752), (b) such Partner's allocable share of Partnership losses and (c) such Partner's allocable share of expenditures of the Partnership described in IRC Section 705(a)(2)(B); and, notwithstanding the above, further adjusted as required to comply with Treasury Regulations Sections 1.704-1(b)(2)(iv), including without limitation the provisions of subparagraphs (d), (e), (g), 0), (m), (n) and (r) thereof, All allocations for purposes of this Paragraph 63 shall be determined in accordance with the provisions of Article 7 (entitled "Profits, Losses and Distributions"). Each Partner shall have a single Capital Account which shall reflect all interests that Partner. 6.4. Limited Liability. Although a Limited Partner is personally liable to the Partnership for payment of his capital contribution, no Limited Partner will be bound by, or personally liable for the expenses, liabilities, or obligations of the Partnership, except to the extent of the Limited Partner's contribution to the capital of the Partnership and his share of the Partnership's undistributed profits; however, to the extent required by law, any Limited Partner receiving a distribution in return of all or a portion of his capital contribution shall be liable to the Partnership for any sum returned, plus interest, necessary to discharge Partnership liabilities to creditors whose claims arose before such return and before an amended certificate of limited partnership was filed reflecting such return of capital. 6.5. Role of Limited Partner. Except as otherwise provided in this Agreement or by law no Limited Partner shall take part in or interfere in any manner with the conduct or Initf.al LY ngeoOMNlt - SInta Ana s.a.ls 9.1.1.5 2 80A-101 control of the business of the Partnership or have any right or authority to act for or on behalf of the Partnership. 6.6. Interest. Interest earned on Partnership funds shall inure to the benefit of the Partnership, and Limited Partners shall not receive interest on funds contributed by them, 6.7. Right to Withdraw Contribution. No partner shall have the right to withdraw or reduce his contribution to the capital of the Partnership except as a result of the dissolution of the Partnership or as otherwise permitted by the Act, and no partner shall have the right to demand or receive property other than cash in return for his contributions to the Partnership. 6.8. Failure to Make Additional Capital Contributions. If the Partnership has insufficient funds to pay the Partnership's obligations, the Administrative General Partner shall have the option of either advancing the necessary sums and thereafter being reimbursed from Partnership funds as they become available or levy a capital contribution assessment on all Partners in proportion to their respective partnership interests. If any such additional contributions are not received within 15 days after the Partners are notified of the election to assess, the additional capital would be raised by first giving the remaining partners the first right of refusal to buy the incremental funding of the partners who do not come up with the required surn. If this fails the, Administrative General Partner would attempt to get new partners to buy the incremental funding required. The new money contributed (hereinafter "New Money") will receive a 30% annual return and the New Money will be returned to the investor before previously contributed capital receives a return or is returned to partners. 6.9. Loans. Any sums in excess of the total capital contributions required by this Agreement, required to meet the costs of owning and operating the Partnership Property may be loaned to the Partnership by the Partners, either General or Limited, and may be repaid with interest not to exceed the legal maximum when the Partnership has funds available not required in the operation of the Partnership business. Any such loans shall not increase the lending Partner's interest in the Partnership. Profits, Losses and Distributions. 7.1. Definitions. For purposes of this Agreement, the following capitalized terms are defined as follows; 7.1.1. "Distributable Cash" is all cash of the Partnership (including without limitation cash from the sale of any or all of the Partnership property) less (i) the amount necessary for payment of all costs, expenses, obligations and liabilities of the Partnership then due (including any then due advances to the Partnership by the Partners), and (ii) the amount deemed necessary by the Administrative General Partner, in the exercise of its reasonable discretion, to establish a reserve for the payment of foreseen or unforeseen costs, expenses, obligations or liabilities of the Partnership. initial LV Agreement - Santa Ana 9.1..x59.0..35 80A-102 The Partnership shall not make, or receive and retain, any distribution of assets or any income of any kind of the project except surplus cash and except on the following conditions: (1) All distributions shall be made only as of and after the end of a semiannual or annual fiscal period; (2) No distribution shall be made from borrowed funds, prior to the completion of the project or when there is any default under this Agreement or under the note or mortgage; (3) Any distribution of any funds of the project, which the party receiving such funds is not entitled to retain hereunder, shall be held in trust separate and apart from any other funds; and (4) There shall have been compliance with all outstanding notices of requirements for proper maintenance of the project. 7.1.2. "Income", "gains", "losses", "deductions", and "credits" are the Partnership's income, gains, losses, deductions and credits, respectively, as finally determined for federal income tax purposes; provided, however, that in making the allocations of such items for purposes of capital account adjustments, the adjustments required by Treasury Regulations Section 1,704-1(b)(2)(iv)(g) shall be taken into account. 7.1.3. The "Accounting Period" of the Partnership will be each period commencing on the first day following the last day of the immediately preceding Accounting Period (which for the Partnership's first fiscal year shall be deemed to be the date of the commencement of the Partnership) and ending on December 31 (which shall also be the Partnership's fiscal year end). 7.1.4 "Minimum Gain" shall mean the taxable gain (whether taxable as capital gain or as ordinary income), which would be recognized by the Partnership if the nonrecourse debt of the Partnership were foreclosed upon and the Partnership's property securing such debt were transferred to the creditor in satisfaction thereof, but only to the extent of the excess of (a) t:he outstanding principal balance of such nonrecourse debt plus any accrued but unpaid interest thereon (whether or not added to principal) to the extent permitted by law, over (b) the adjusted basis of such property. 7.1.5. "Invested Capital" shall be the amount of capital contributed or deemed contributed to the Partnership by the Limited Partners pursuant to Paragraph 6.1 (entitled "Initial Capital). initial Le Agreement - Santa Ana 9.1.159.1,15 80A-103 7.1.6. "Invested Capital Balance" shall be the amount of a Partner's Invested Capital, plus the amount of any additional capital contributed by such Partner and reduced by the amount of cash distributed to such Partner pursuant to any provision of Paragraph 7.10 (entitled "Distributions of Cash from Operations"), Paragraph 7.11 (entitled Distribution of Cash from Capital Event) and subparagraph 11.3.3. 7.2. Allocation of Losses. For all Accounting Periods on a cumulative basis, except as otherwise specifically provided in this Agreement (including without limitation the provisions of Paragraphs 7.5 [entitled "Minimum Gain"], 7.6 [entitled "Recourse Debt Loss Allocation"]), 7.8 [entitled "Qualified Income Offset"], 7.12 [entitled "Allocations for Contributed Property; IRC Section 754 Adjustments"] and 7.15 [entitled "Revaluation Adjustment"]) (collectively such Paragraphs 7.5, 7.6, 7.8, 7.12 and 7.15 allocations shall be referred to as the "Required Allocations"), all losses (including all expense items separately stated on the Partnership's tax return) of the Partnership shall be allocated to the Partners in proportion to their then Partnership's Interests as set forth on Exhibit "A". 7.3. Allocation of Profits. Por each Accounting Period, except as otherwise specifically provided in this Agreement (including without limitation the provisions of Paragraphs 7.5 [entitled "Minimum Gain"], 7.7 [entitled "Allocation of Ordinary Income"], 7.8 [entitled "Qualified Income Offset"], 7.12 [entitled "Allocations for Contributed Property; IRC Section 754 Adjustments"] and 7.15 [entitled "Revaluation Adjustment"]), all profits and gains (collectively "profits") (including all income items separately stated on the Partnership's tax return) of the Partnership shall be allocated to the Partners as follows: 7.3.1. First, if profits arise from the sale or other disposition of property with respect to which an investment tax credit was previously claimed, profits equal to the amount by which the basis of such property was reduced as a result of such claimed investment tax credit shall be allocated among the Partners in the same manner as such investment tax credit was previously allocated; 7.3.2. Second, to the same Partners, in the same amounts and in the same order of allocation as losses were theretofore allocated pursuant to Paragraph 7.2 (entitled "Allocation of Losses") and the Required Allocations, less the amount, if any, of profits previously allocated under this subparagraph 7.3.2 and/or the Required Allocations; and 7.3.3. Thereafter, to the Partners in proportion to their then Partnership Interests as set forth on Exhibit "A". 7.3.4, Notwithstanding anything to the contrary contained in this Agreement and except as provided in subparagraph 7.5.2 and 7.8.1, in the event any profits from the sale or other disposition of all or any portion of the Partnership's assets constitute interest income (including "imputed interest"), such interest income, for each year, shall be allocated among the Partners pro rata based upon the amount of deferred principal proceeds (exclusive of "imputed interest") received by each of the Partners pursuant to Paragraph 7.10 (entitled "Distributions of 1nitlal LP Agteement - Santa Ana 9.1.159.1.15 5 80A-104 Cash from Operations"), Paragraph 7.11 (entitled Distribution of Cash from Capital Events) and subparagraph 11.3.3. during each such year. 7.4. Allocation of Credits. All income tax credits of the Partnership shall be allocated in accordance with the ratio in which the profits of the Partnership are allocated (or would be allocated) among the Partners pursuant to Paragraph 73 (entitled "Allocation of Profits"), for the Partnership's taxable year during which the property which gives rise to the income tax credit is placed in service, regardless of whether the Partnership has a profit or a loss for such taxable year, However, if the ratio in which the Partners divide the profits of the Partnership changes during the taxable year of the Partnership in which such properly is placed in service, the ratio effective for the date on which the properly is placed in service shall apply. To the extent that any income tax credits allocated to the Partners are subject to recapture, such recapture income shall be allocated to the Partners to whom such tax credits were previously allocated. 7.5. Minimum Gain. Notwithstanding any other provision of this Agreement to the contrary and with a priority allocation pursuant to Treasury Regulations Section 1.704-1[b][4][iv][e]: 7.5.1. The Limited Partners shall not be allocated loss or deduction (or items thereof) attributable to nonrecourse debt which is secured by Partnership Property if such allocation would cause the sum of the deficit capital account balances of the Partner receiving such allocation (increased by the additional capital contributions such Partner is obligated to make pursuant to Paragraph 6.1 [entitled "Initial Capital"]) to exceed the Minimum Gain (determined at the end of the Partnership's taxable year to which such allocation relates) a Limited Partner's allocable share of the minimum gain shall be equal to the product of (a) the Minimum Gain, times (b) such Partner's then Partnership Interest. 7.5.2. The Partners with deficit Capital Account balances resulting in whole or in part from allocations of loss or deduction (or item thereof) attributable to nonrecourse debt which is secured by Partnership properly shall, to the extent possible, be allocated income or gain (or item thereof) until the sum of such deficit Capital Account balances equals the Minimum Gain, 7.5.3. For purposes of computing the sum of the Partners' deficit Capital Account balances, if any property (including cash) is held by the Partnership at the end of the Partnership taxable year and there is a reasonable expectation that such property will be distributed to a Partner (other than in liquidation of the Partnership) prior to a corresponding increase in such Partner's Capital Account, such property shall be treated as having been distributed to such Partner on the last day of such taxable year, 7,5.4, The Minimum Gain shall be reduced by the cost of any capital improvements to be made to the subject property and the amount of any principal payments to be made with respect to the non recourse debts secured by such property to the extent there is a Initial LP Agreement - Santa Me 9.1.159.1.15 80A-105 reasonable expectation that such improvements or payments would reduce the Minimum Gain below the sum of the deficit Capital Account balances. 7.6. Recourse Debt Loss Allocation. The allocation of loss or deduction (or items thereof) not attributable to nonrecourse debt which is secured by Partnership property shall not be made to a Partner if such Partner has a deficit Capital Account balance. Any such loss shall be. allocated first among the Partners with positive Capital Account balances (and among them in proportion to their then positive Capital Account Balances) and then to the Administrative General Partner (and among them in proportion to their then respective Partnership Interests). Furthermore, losses attributable to nonrecourse liabilities of the Partnership where a Partner has economic risk of loss shall be allocated as required pursuant to Treasury Regulations Section 1.704-1(b)(4) (iv)(g). 7.7. Allocation of Ordinary Income. Notwithstanding anything to the contrary contained herein, any gain which is taxable as ordinary income as a result of depreciation or cost recovery taken by the Partnership shall be allocated among the Partners in the proportion that depreciation or cost recovery deductions were previously allocated among the Partners. 7.8. Qualified Income Offset. Notwithstanding anything to the contrary contained herein, allocations of profits, gain and losses to the Partners shall be made in a manner to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d). It is the Partners' intent that the following provisions, to the extent permitted by Treasury Regulations Section 1.704-1(b)(2)(ii)(d), shall not affect (a) losses or deductions (or items thereof) attributable to nonrecourse debt which is secured by Partnership property and/or (b) the priority allocation, if any, pursuant to subparagraph 7,5.2, In furtherance thereof, the following provisions shall apply to the extent required pursuant to the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d). 7.8, I. Losses shall not be allocated to any Partner if such allocation would, together with any decrease (and increase) of such Partner's Capital Account pursuant to the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6), cause or increase a deficit balance (in excess of any limited dollar amount of such deficit that such Partner is obligated to restore which shall include the amount of any Partner's share of minimum gain as provided by the provisions of Treasury Regulations Section 1.704-1[b][4][iv](fJ) in such Partner's Capital Account as of the end of the Partnership's taxable year to which such allocation relates. A Partner's Capital Account adjusted as provided by this subparagraph 7.8.1 (including any obligation to restore any deficit) shall be referred to as the "Adjusted Capital Account". 7.8.2. Any losses not allocable to a Partner pursuant to the foregoing subparagraph shall be allocated to such Partners who have positive Adjusted Capital Accounts in proportion to their respective positive Adjusted Capital Accounts, with any losses in excess of such positive Adjusted Capital Accounts, being allocated to the Administrative General Partner (and among them in proportion to their then respective Partnership Interests. 7.8.3. If a Partner unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulations Section 1,704-1(b)(2)(ii)(d)(4), (5) and/or (6), Initial L9 Agreement - Santa Ana 9.1.159.1.14 7 80A-106 then such Partner will be allocated items of income and gain in an amount and manner sufficient to eliminate any deficit balance in such Partner's Adjusted Capital Account as quickly as possible. 7.9. IRC Section 704 Modifications. If the General Partner receives the written opinion of tax counsel to the Partnership that the allocations of income, gain, loss, deduction or credit (or items thereof) would not fully conform to IRC Section 704(b), the Administrative General Partner is directed to make such allocations and/or amendment to this Agreement as advised by such tax counsel but only so long as none of the Partners would be materially adversely affected thereby, A Partner shall be deemed to be "materially adversely affected thereby" only if the effect of such allocation or amendment would be to cause such Partner to receive Distributable Cash in a manner inconsistent with the Partners' intentions as evidenced by this Agreement. It is the further intent of the Partners that the Administrative General Partner shall cause, to the extent permitted pursuant to the provisions of Treasury Regulations Section 1.704-1(b), items of income, gain, loss and deductions not required to be allocated in accordance with the Required Allocations to be allocated among the Partners to minimize the differences between the allocations provided by Paragraphs 7.2 (entitled "Allocation of Losses") and 7.3 (entitled "Allocation of Profits") and the allocations pursuant to the Required Allocations. Any allocation made pursuant to this Paragraph shall supersede any allocation otherwise provided in this Agreement and no approval of any Partner shall be required. The Partners agree to promptly execute any amendment to this Agreement pursuant to the provisions of this Paragraph and upon failure to do so, the Administrative General Partner, as the Limited Partners' attorney-in-fact, is authorized to execute any such amendment on behalf of the Limited Partners. 7.10. (Distribution of Cash from Sales/Refinance. Except as required under paragraph 7.10.9 and pursuant to subparagraph 113.3, for each Accounting Period, Distributable Cash shall be distributed to the Partners as follows: 7.10,1. First, to payment of interest on partner's loans (if any); 7.10.2, Second, to payment of the principal of partner's loans (if any); 7.10.3. Third, to the return of "New Money" contributed pursuant to paragraph 6.8 (if any); 7.10.4. Next to payment of a 30% return on the New Money calculated from the date contributed until the date returned; 7.10.5. Next, to the Original Partners (and among them in proportion to their then respective Invested Capital Balances) until each Partner has received an amount of cash equal to the amount of his then Invested Capital Balance; 7.10.6. Next, to the Limited Partners until the Limited Partners have received an overall annualized return of 18% (including previous distributions from operations); ]adtial LD A9#cement - Santa an. 9.1.159.1.15 0 80A-107 7.10.7 Next, to the Administrative General Partner until the Administrative General Partner receives a distribution of 10% of the sum of 7.10.6 and 7.10.7, 7.10.8 Thereafter, to the Limited and Administrative General Partner simultaneously in the ratio of 90/10 respectively, 7.10,9. Notwithstanding anything to the contrary contained in this Agreement, if any Distributable Cash constitutes interest income received in connection with the sale or other disposition of all or any portion of the Partnership's assets (including "imputed interest"), cash equal to such interest received by the Partnership shall be distributed, during each year, among the Partners in the same ratio as the principal amount of such installment sale is distributed to the Partners during such year and such distribution shall not be treated as a distribution of Distributable Cash pursuant to subparagraphs 7.10.3 and 7.10,4; 7.10.10, Distribution of Cash from -0 aerations, All periodic Distributions from Operations will be made in accordance with the partners interests in the partnership per Exhibit A, Column 1 until the limited Partners have received a 9% cash on cash return. The Partnership is authorized to execute a Note and Mortgage in order to secure a loan to be insured by the Secretary of Housing and Urban Development and to execute a Regulatory Agreement and other documents required by the Secretary in connection with such loan. Any incoming general partner shall, as a condition of receiving an interest in the Partnership, agree to be bound by the Note, Mortgage, and Regulatory Agreement and other documents required in connection with the PHA insured loan to the same extent and on the same terms as the other general partners. Upon any dissolution, no title or right to possession and control of the Project, and no right to collect the rents therefrom, shall pass to any person who is not bound by the Regulatory Agreement in a manner satisfactory to the Secretary, 7.10.11 Next, the Administrative General Partner will receive a distribution of 10% of the sum of 7. 10.10 and 7.10.11. 7.10.12Thereafter, in the ratio of Exhibit A, Column 2. 7,11, Allocations for Contributed Property; IRC Section 754 Adjustments. If any Partner contributes any property to the Partnership, gain or loss with respect to such property on the sale or other taxable disposition of such property and the depreciation or cost recovery deductions for such property shall be allocated to the Partners as required in IRC Section 704 (c). To the extent required pursuant to Treasury Regulations Section 1.704-1 (b) (2) (iv) (m), the Partnership gain or loss, with respect to a Partner for whom the provisions of IRC Section 734 (b) or Section 743 (b) are applicable, shall be allocated in accordance with such provisions. Initial LV AgrOamant - SanLt Ana 9.1.159.1.15 L 1 • 1 46 7.12. Identity of Distributees. Distributions shall be made only to persons who, according to the books and records of the Partnership, are the owners of record of partnership interest on a date to be determined by the Administrative General Partner. Neither the General Partners nor the Partnership shall incur any liability for making distributions in accordance with the preceding sentence, whether or not the General Partners has knowledge or notice of any transfer of ownership of any partnership interests. 7.13. Sharing Between Transferor and Transferee. If an interest in the Partnership is transferred, the income, gains, losses and deductions allocable to the interest transferred for the Accounting Period during which the transfer occurred will be allocated between the transferor and transferee of the interest in proportion to the time during the Accounting Period that the interest was owned by the transferor and transferee. Credits shall be allocated to the party who owned the interest at the time that the property giving rise to the credit was placed in service. Each transferee will be credited with the capital account of the transferee's transferor. If a transferor transfers less than all of the transferor's interest in the Partnership, the capital account will be allocated in proportion to the fraction of the interest respectively transferred and retained. 7.14. Revaluation Adjustment. 7.14.1. The Administrative General Partner, upon advice of the Partnership's tax counsel that the Partnership is authorized pursuant to the provisions of Treasury Regulations Section 1.704-1(b) (2)(iv)(f) and that it is in the Partners' interest to do so, shall cause an increase or decrease in the Partners' Capital Accounts to reflect a revaluation of Partnership property (including intangible assets such as goodwill) on the Partnership books. Any such revaluation shall be made strictly in compliance with the provisions of Treasury Regulations Section 1.704-1(b)(2) (iv)ft including without limitation: (a) such adjustments shall (r) be based on the fair market value of Partnership properly (as agreed to by the Partners (as hereinafter provided) and taking IRC Section 7701 [g] into account) on the date of adjustment and (ii) reflect the manner in which the unrealized income, gain, loss or deduction inherent in such property (that has not been previously reflected in the Capital Accounts) would be allocated among the Partners if there were a taxable disposition of such property for its fair market value at the date of adjustment; (b) the Capital Accounts shall be adjusted in accordance with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization gain or loss (all as computed for book purposes) with respect to such property following the date of adjustment; and (c) the Partners' shares of depreciation, depletion, amortization, gain or loss (all as computed for tax purposes), with respect to such property, shall be determined so as to take account of the variation between the adjusted tax basis and book value of such property in the same manner as under IRC Section 704(c) following the date of adjustment. 7.14.2. In accordance with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv)(g), the amount of book depreciation, depletion or amortization, for a period, with respect to any Partnership Properly, is the amount that bears the same relationship to the book value xnitdal W AgtOemene - s3nea ana 9.1.159.1.15 7.0 80A-109 of such property as the depreciation (or cost recovery deduction), depletion or amortization computed for tax purposes for such property, for such period, bears to the adjusted tax basis of such property. 7.14.3. For purposes of the foregoing, except as herein- after provided, the fair market value of any such Partnership Properly shall be equal to the amount determined by the General Partner as set forth in a written notice delivered by the Administrative General Partner to the Limited Partners (the "Notice"), Notwithstanding the foregoing, if those Limited Partners ("Dissenting Limited Partners") owning a majority of the Partnership Interests owned by all the Limited Partners object in writing to such fair market value within 10 days of delivery of the Notice, then the fair market value of such property shall be determined by the mutual agreement of the Dissenting Limited Partners and the Administrative General Partner. If they cannot so agree, then the fair market value shall be determined by a qualified appraiser selected by the mutual agreement of the Administrative General Partner and the dissenting Limited Partners (and if they are unable to agree on such selection, the appraiser shall be selected by the American Arbitration Association or any successor organization thereto). All appraisal costs shall be paid by the Partnership. 8. Management. 8.1. Authority of General Partners. The Administrative General Partner and the Managing General Partner, if so named at this time, shall each have complete power of management of the Partnership and shall have authority to act on behalf of the Partnership in all Partnership matters including without limitation the power to execute notes, deeds of trust, contracts and leases; to assume direction of business operations and the Administrative General Partner and the Managing General Partner, if so named at this time, shall each have all rights, powers and authority generally conferred by law or necessary, advisable or consistent with accomplishing the purpose of the Partnership as set forth in Article 4 of this Agreement. During the operation phase the Managing General Partner shall be primarily responsible for the Partnership's operations. The Managing General Partner when entered into the Agreement shall perform other tasks and duties as may be required for non-profit general partners in order to maintain property tax abatement under the welfare exemption of the California Revenue and Tax Code and will perform all duties to qualify as a Managing General Partner under rule 140.1 adopted by the Board of Equalization each year. 8.2, Restrictions. The Administrative General Partner shall have no authority to (a) do any act which would make it impossible to carry on the ordinary business of the Partnership; (b) do any act in contravention of this Agreement; (c) possess Partnership Property or assign the right of the Partnership in any Partnership Property for other than a Partnership purpose; (d) obligate the Partnership as a surety or guarantor, endorser, or accommodation endorser for any other person or firm; or (c) make an assignment of the Partnership assets for the benefit of creditors. Initial LO Agreement - Fanta Ma 9.1.159.1.15 1] 80A-110 8.3. Approval Rights. The Limited Partners shall have the right, by vote of more than 50% of the Limited Partners' Interests, as shown on Exhibit "A", to approve the following matters affecting the basic structure of the Partnership: 8.3.1. The dissolution and winding up of the limited partnership, 8.3.2. The merger of the limited partnership or sale, exchange, lease, mortgage, pledge, or other transfer of, all or a substantial part of the assets of the limited partnership other than in the ordinary course of its business. 8.3.3. Incur indebtedness by the limited partnership other than in the ordinary course of business. 8.3.4. A change in the nature of the business. 8.3.5. Transactions in which the General Partners has an actual or potential conflict of interest with the limited partners or the partnership. 8.3.6. The removal of a general partner, 8.3.7. An election to continue the business of the Limited Partnership other than under the circumstances described in subparagraph 8.3.9 or 8.3.10. 8.3,8. The admission of a general partner other than under the circumstances described in subparagraph 83.9 or 83. 10, subject to the unanimous vote requirement of paragraph 11,6, 83.9. The admission of a general partner or an election to continue the business of the limited partnership after a general partner ceases to be a general partner other than pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act where there is no remaining or surviving general partner, subject to the unanimous vote requirement of paragraph 11.6 8.3.10,The admission of a general partner or an election to continue the business of the limited partnership after the general partner ceases to be a General Partner pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act where there is no remaining or surviving general partner, subject to the unanimous vote requirement of paragraph 11.6 All other matters are within the discretion of the Administrative General Partner and the Limited Partners shall have no right to vote on those matters. 8.4. Meetings of Partners. Meetings of Partners shall be held at the principal place of business of the Partnership. Meetings shall be held only when called by either the Administrative General Partner or by Limited Partners representing more than 10% of the Limited initial LP Agreement - Santa Ma 9.1.159.1.15 12 80A-111 Partners` Interests, as shown on Exhibit A. Meeting notices and procedures shall be in conformity with California Corporations Code Section 15637, 8.5 Power of Attorney. The Limited Partners hereby irrevocably constitute and appoint the Administrative General Partner as his attorney to make, execute, acknowledge, and record any instrument which may be required by law to be filed by the Partnership, and any and all deeds, leases, deeds of trust, loan applications, promissory notes, loan agreements, assignments of lease, or other instruments or documents which the Administrative General Partner deems appropriate or necessary to carry out the purposes of this Agreement. The foregoing power of attorney shall survive the delivery of any assignment by a Limited Partner of the whole or any portion of his limited partner's interest, and any assignee of a Limited Partner hereby constitutes and appoints the Administrative General Partner as his attorney in the same manner and with the same force as if such assignee had executed this Agreement. 8.6. Other Activities. The Administrative General Partner shall devote so much of its time and attention to the Partnership business as it deems necessary or advisable under the circumstances. Any partner, General or Limited, may engage in or possess an interest in other partnerships and other business ventures of every nature and description and neither the Partnership nor the Partners shall have any right in such independent ventures or to the income or profits derived therefrom. Neither the General Partners or any Limited Partner shall be obligated to present any particular investment opportunity to the Partnership, even if the opportunity is of a character which, if presented to the Partnership, could be taken by the Partnership and the Partner receiving the opportunity shall have the right to take it for his or her own account or to recommend it to others. The fact that a Partner is employed, or is directly or indirectly interested in or connected with any firm or corporation employed by the Partnership to perform a service, shall not prohibit the General Partners from employing such person, farm or corporation, or from otherwise dealing with him or it. Neither the Partnership nor the Partners shall have any rights in or to any income or profits derived from such employment, nor shall such employment change the status of the partner as a Limited Partner hereunder, 8.7. Scope of Authority. Except as herein set forth, the Administrative General Partner shall have the right to cause the Partnership to enter into transactions with other persons, firms or entities with which the Administrative General Partner is affiliated, and to receive compensation, directly or indirectly through such affiliated corporation or other persons, for services rendered in connection with the Partnership from any source or transaction. 8.8. Limitation on Liability. The Partners acknowledge and agree that it is their intent that the General Partners shall not be liable, responsible or accountable in damages or otherwise, to any third person nor to the Partnership, nor to the other Partners for any loss, liability, obligations, penalties, actions, judgments, proceedings, damages, costs or expenses of any kind or nature whatsoever, including without limitation, all costs and expenses of defense, appeal and settlement, in any way relating to or arising out of or alleged to relate or arise out of any action or inaction on the part of the Partnership or the General Partners, except for the willful misconduct, gross negligence or reckless disregard by the General Partners of its duties. The Partnership shall Znieial L15 Agreement - Santa Ana 9.1..159.115 13 80A-112 indemnify the General Partners and hold it harmless from any of the foregoing, The General Partners is hereby authorized to withhold distributions if they determine in their sole discretion that such funds should be held as a reserve for indemnification, 8.9. Reimbursement of Expenses. The Administrative General Partner shall be entitled to reimbursement for all legal and auditing fees and expenses of agents and advisors, costs of insurance, and the cost of preparing the Partnership's tax returns. The Administrative General Partner shall also be entitled to reimbursement from the Partnership for direct and specific project expenses, overhead and administration costs, which shall include expenses connected with the distribution to and communication with Partners. The Administrative General Partner shall be entitled to a fee equal to 5% of the gross annual revenues as an asset/property management fee. In addition an affiliated company of the Administrative General Partner will act as a real estate broker and will receive a commission not to exceed I% of the price on the purchase and on the sale of the property, No Limited Partner shall be entitled to any share of any such sums paid to the Administrative General Partner or its affiliate. 8.10. Administrative and Development Tees. The General Partners shall not be entitled to any compensation for time, labor or overhead, except as specifically provided for in this Agreement. 9. Transferability of Partners' Interest. 9,1, Permitted Transfers. The interest of a Partner may be sold or transferred only: (a) to an entity in which the transferring Partner owns a 51% or greater interest; (b) to the Partnership or to any Partner; (c) by testamentary disposition or by gift to a Partner's spouse or issue or to a trust fur such spouse or issue; (d) upon the sale of a Limited Partnership interest to a non partner, subject to the provisions of Paragraph 9.2, 9.2. Sale of Limited Partnership interest. Except as set forth in Section 9.1.1, 9,2.2 or 9.2.3, the interest of a Partner in the Partnership only in its entirety, and on the following conditions. Any attempted transfer to any other person, including a transfer by operation of law, shall be void. 9,2,1. If any Partner ("Selling Partner") receives a bona fide offer to purchase all or any part of his Partnership interest, which offer the Selling Partner wishes to accept, the Selling Partner shall immediately notify the other Partners ("Remaining Partners") of the offer. The offer shall be communicated as provided in Paragraph 13 and shall include, the terms and conditions of the offer, the name of the person malting the offer, the date on which the offer expires, and all other relevant information concerning the offer. Each Remaining Partner shall have 20 days after receipt of the offer, to match the price in the offer by giving notice in writing to the Administrative General Partner specifying how much of the Selling Partner's interest he wishes to purchase, Initial 1,11 Agreement - SInta Ana 9.1.159.1.15 1.4 80A-113 9.2.2. If the total of the offers of the Remaining Partners offering to purchase ("Accepting Partners") equals or exceeds the interest the Selling Partner offered to sell, the Accepting Partners shall become bound to purchase, and Selling Partner shall become bound to sell his interest to the Accepting Partners on the terms of the offer. 'the portion of the price payable by each of the Accepting Partners shall be the several, and not joint, obligation of each of the Accepting Partners, and shall be paid to the Selling Partner. If the total of the offers of the Accepting Partners equals the interest the Selling Partner offered to sell, each Accepting Partner shall purchase the proportion of the Selling Partner's interest specified in his notice. If the aggregate of the offers of the Accepting Partners exceeds the interest the Selling Partner offered to sell, each Accepting Partner shall purchase that proportion of the offered interest equal to such Accepting Partner's interest in the Partnership. No later than 7 days after expiration of the period for the Remaining Partners to exercise their rights under this article, the Administrative General Partner shall advise the Partners of the amount payable by each Accepting Partner, and the Administrative General Partner shall cause the interest of the Selling Partner to be eliminated and the interest of each of the Accepting Partners to be increased by the respective portion of the Selling Partner's interest purchased. 9.2.3. If the Remaining Partners do not offer to purchase all of the offered interest of Selling Partner within 20 days after receipt of the Proposed Offer, the Selling Partner may disregard all offers received from the Remaining Partners and may, within 30 days after the 20 -day period, dispose of his interest on the terms of the offer, provided that such sale shall not be at a lower price or upon terms more favorable to the buyer than those specified in the offer, If the Selling Partner can not sell his interest within said 30 day period, he may then only sell his interest after re -offering it to the other Partners as set forth above. 9.3. Substituted Limited Partner. No Limited Partner shall have the right to substitute an assignee for his capital contribution, and no transferee pursuant to paragraphs 9.1 and 9.2 of the whole or any portion of the Limited Partner's interest in the Partnership shall become a substituted Limited Partner unless: (a) such assignee delivers to the Administrative General Partner an agreement in writing to assume all of the obligations of Selling Partner under this Agreement; and (b) the Administrative General Partner consents in writing to such substitution; the Administrative General Partner may grant or withhold its consent in its sole and absolute discretion. 9.4. Election of General Partner. The Administrative General Partner may elect to treat and assignee who has not become a substituted limited partner as a substituted limited partner in the place of his assignor should the Administrative General Partner deem, in its sole discretion, that such treatment is in the best interests of the Partnership. 9.5. Non -Termination, The Partnership shall not be terminated by the death, insanity, bankruptcy, insolvency, dissolution, withdrawal, or expulsion of any Limited Partner, nor Initial LY Agreement - Santa Ma 9.1.159.1.15 15 80A-114 by the assignment by any Limited Partner of his interest or by the admission of new Limited Partners. 9.6. Death or Incompetency of Limited Partner. Upon the death or legal incompetency of a Limited Partner his personal representative shall have all the rights of a limited partner for the purpose of settling or managing his estate. 9.7. Other Limited Partners. Upon the bankruptcy, insolvency, dissolution or other cessation of a corporate limited partner, the authorized representative of such entity shall have the rights of a limited partner to effect the orderly disposition of said Limited Partner's interest. 10. Financial Information. 10.1. Books of Account. The Administrative General Partner shall keep accurate books of account in which all matters relating to the Partnership, including all income, expenses, assets, and liabilities shall be entered. Said books shall be kept on a cash basis and shall be opened to examination by any partner at any time. 10.2. Accounting. A financial statement describing the condition of the partnership, as of the close of business on the last day of the calendar year and such additional information as may be needed by the partners to file their tax returns, shall be rendered to each partner within 90 days thereafter. Except for substantial errors brought to the attention of the Administrative General Partner within 30 days of its rendition, such accounting shall be final and conclusive as to all partners. 10.3. 'Tax Matters Partner, AMCAL Multi -Housing Two, LLC, shall be the "Tax Matters Partner" pursuant to IRC Section 6231 (a) (7). The Tax Matters Partner shall keep the other partners apprised of all proceedings regarding Partnership tax items. The Tax Matters Partner shall not enter into a settlement agreement with the Internal Revenue Service on behalf of any partner without that partner's consent. 10.4. Accounting Decisions. All decisions as to accounting matters, except as specifically provided to the contrary in this Agreement, will be made by the Partnership's accountants subject to the approval of the Administrative General Partner, 10.5. Federal Income `Tax Elections. The Administrative General Partner shall cause the Partnership to make an election (or consent) to any such election by a Partner) pursuant to any of IRC Sections 732(d) and/or 754 (or corresponding provisions of succeeding law or state law), as may be determined by the Administrative General Partner in the Administrative General Partner's reasonable discretion, except to the extent otherwise determined by this Agreement. 11, Dissolution. initial T& 11greemeat'. • Sunla Ann 9,1,159.1.15 .6 80A-115 I I.I. Mutual Agreement. The Partnership shall be dissolved upon: (a) the vote of the Limited Partners as provided in paragraph 8.3, or (b) upon sale of the Partnership Property; provided, however, if the Partnership receives a promissory note as pant of the consideration for the Partnership Property, the Partnership shall continue for the sole purpose of collecting and enforcing such obligation. The Partnership shall engage in no further business thereafter other than that which is necessary to wind up the business and distribute the assets. 11,2. Proceedings Upon Dissolution. Upon the dissolution of the Partnership, the Administrative General Partner shall notify partners of such dissolution, wind up the affairs of the Partnership, liquidate the assets of the Partnership, pay or provide for the payment of all the debts, and divide the surplus, if any, among the partners according to the provisions of paragraph 113 hereof, subject to such adjustment as may be required by the Partnership's accountant in accordance with generally accepted accounting principles. If after the liquidation and distribution, any Partner or Partners would have a negative Capital Account, net income, if any, resulting from the liquidation shalt first be allocated to that Partner or those Partners on a pro rata basis in the arnount of the deficit and the remaining net income to the Partners in proportion to their receipt, or entitlement to receipt of the proceeds of liquidation. If after that allocation a Partner has a negative Capital Account, that Partner shall contribute to the Partnership cash in the amount of the remaining deficit. 11.3, Distributions on Dissolution. The assets of the Partnership shall be applied in the following order of priority: 11.3.1, To the payment of debts and liabilities of the Partnership (other than any loans and advances that may have been made by any of the Partners, or amounts owing to any of the Partners) and the expenses of liquidation; 11,12, To the setting up of any reserves that the Administrative General Partner may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership, and, at the expiration of such period as the Administrative General Partner shall deem advisable, to distribute the balance thereafter remaining in the manner hereinafter provided; 11.3.3. Any balance then remaining will be distributed to the Partners in accordance with their respective Capital Accounts, provided that profits shall first be allocated in accordance with the provisions of Paragraph 7.3 (entitled "Allocation of Profits"), in the manner as if all the Distributable Cash were then distributed in accordance with the provisions of Paragraph 7.11 (entitled "Distributions of Cash from Capital Event"). 11.4. Assets Other Than Cash. Assets of the Partnership may be distributed in kind on the basis of the then fair market value of such assets as determined by agreement of the Partners, and if no such agreement of value is reached within 10 days, then such value shall be determined by an independent appraiser appointed by the American Arbitration Association upon application of the Administrative General Partner (the cost and expense of said appraisal to be borne by the Partnership). If agreed to by all the Partners, distributions in-kind will be made to the Initial IR Agrt.m nl - Santa Ana 9.1.159.1.1.5 17 80A-116 Partners as tenants-in-common. For purposes of making such distribution only, the unrealized profit or loss on any such asset (based on its fair market value) shall be first allocated among the Partners and the distribution of the asset shall be treated as a distribution of cash equal to the fair market value of such asset. 11.5. Liquidation of Partner's Interest. Upon liquidation of any Partner's interest in the Partnership, the liquidation distributions shall be made in accordance with the positive Capital Account balances of the Partners adjusted as otherwise required by the provisions of this Agreement. A liquidation of a Partner's interest shall occur as required pursuant to Treasury Regulations Section 1.704-1 (b)(2)(ii)(g), 11,6. Reconstitution of Partnership. The Limited Partners may, upon the occurrence of any of the events described in paragraphs 8.3.6 or 11. 1, reconstitute the business of the Partnership in a new limited partnership on the terms as this Agreement provided that if all of the General Partner cease to be a General Partner other than pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act, and there is no remaining or surviving General Partner, admission of a new General Partner or a decision to continue the Partnership business by reconstituting the Partnership must be approved by the affirmative vote of all of the Limited Partners. Expenses incurred in the reformation, or attempted reformation, of the Partnership shall be deemed expenses of the Partnership. 11.7. Partnership Assets. Each partner shall look solely to the assets of the Partnership for the return of his investment, and if the assets of the Partnership remaining after the discharge of all debts and liabilities of the Partnership are insufficient to return the investment of each Limited Partner, such Limited Partner shall have no recourse against the Administrative General Partners or any other Limited Partner, 12. Books and Records. The Administrative General Partner shall keep at the partnership's office the following Partnership documents; 12.1. A current list of the full name, and last known business or residence address of each Partner, together with the contribution and share in profits and losses of each partner. 12.2. A copy of the Certificate of Limited Partnership and all Certificates of Amendment, and executed copies of any powers of attorney pursuant to which any certificate has been executed. 12.3. Copies of the Partnership's federal, state and local income tax or information returns and reports, if any, for the 6 most recent taxable years, 12.4. Copies of the original Agreement and all Amendments to the Agreement. 12.5. Financial statements of the Partnership for the 6 most recent fiscal years. IniLial LP agmeemOnL - Santa A l 9.1.159.1.15 as 80A-117 12.6. The Partnership's books and records for at least the current and past 3 fiscal years. Upon the request of a Limited Partner, the Administrative General Partner shall promptly deliver to the requesting Limited Partner, at the expense of the Partnership, copies of the documents described in items 12,1, 12.2, or 12.4 above. All other documents may be inspected and copied by a Limited Partner during normal business hours upon reasonable, prior request. Copies of any amendments to this Agreement signed pursuant to the Administrative General Partner' power of attorney shall be promptly delivered to all Partners. 13. Notices. Any notices required to be given under this Agreement shall be in writing and signed by or on behalf of the party giving the notice sent by prepaid certified or registered mail, return receipt requested, to each partner at the address set forth after his signature or such other address as may be designated by notice given as aforesaid. Service of notice shall be deemed to be effective as of the date shown on the receipt issued by the post office for such registered mail, and if such receipt is not returned, 48 hours after deposit in the United States mail. 14. Attorneys' Fees. If any party hereto files an action or proceeding concerning any provision of this Agreement or the rights and duties of any person in relation thereto, the party or parties in whose favor final judgment shall be entered shall be entitled to recover from the other party or parties his court costs and reasonable attorneys' fees. 15. Miscellaneous Provisions. 15.1, Entire Agreement. All of the agreements heretofore and contemporaneously made by the parties are contained in this Agreement and, except as provided in Paragraph 8.3 this Agreement cannot be modified in any respect except in writing executed by parties holding an aggregate majority of the Partnership interests. 15.2. Validity. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application or interpretation of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby and shall remain in full force and effect. 15.3. Waiver of Action for Partition. Each of the parties hereto irrevocably waives his right to maintain any actions for partition with respect to the Partnership Property and other investments of the Partnership. 15.4, Governing Instruments. In the event of any conflict between the provisions of this Agreement and any document executed or filed by the Administrative General Partner pursuant to the power of attorney granted to him this Agreement shall govern. 15.5. Beadings. The headings used herein are for convenience only and shall have no effect upon the interpretation of this Agreement. Whenever the context so requires, the initial LV Agreement - Santa AOM 9.1,159.1.15 W, 80A-118 singular number shall include the plural, the plural shall include the singular, the neuter gender shall include the masculine and feminine genders and vice versa, 15.6. Counterparts, This Agreement may be executed in counterparts, each of which so executed shall be deemed an original, and said counterparts together shall constitute one and the same document, 15.7. Binding Effect. This Agreement shall be binding on, and shall inure to the benefit of the heirs, legal representatives, successors, and permitted assigns of each party. 16, Limited Partners Representations. Each Limited Partner by signing below represents and warrants to the Partnership and to the Administrative General Partner that; 16.1. The Limited Partner has received such information about the partnership, as the Limited Partner deemed necessary to evaluate this investment, and a copy of this Limited Partnership Agreement, 16.2, That the Limited Partner is taking all of the Limited Partnership Interest (the "Units") listed after his name on Exhibit "A" for his own account and not as an agent, trustee, custodian or the like for any other person or with a view to or for sale in connection with a distribution thereof. Each Partner understands that the interest being purchased and sold hereunder has not been registered under the Securities Act of 1933, as amended, nor qualified under the California Corporate Securities Law of 1968, as amended, because the contemplated transaction constitutes a private offering within the meaning of Section 4(2) of the Securities Act of 1933 and Regulation D promulgated there Linder, and is exempt from qualification pursuant to Section 25102 (t) of the California Corporate Securities Law of 1968, as amended. 16.3. That the Limited Partner is taking the Units for investment purposes only and has no present intention to dispose of them to any other person. 16.4. That the Limited Partner has such knowledge and experience in financial and business matters that he is capable of evaluating the risks of the prospective investment, 16.5. That the Limited. Partner is a person who is able to bear the economic risk of the investment. 16.6. That the Limited Partner has an adjusted gross income of at least $30,000 in the year he is subscribing and a net worth of at least $60,000; or a net worth of $100,000 or three times the initial cash investment for the Units subscribed, whichever is greater; and 16.7. That the Administrative General Partner has trade available to the Limited Partner the opportunity to obtain any additional information, to the extent the Administrative General Partner possesses such information or can acquire without unreasonable effort or expense, necessary to verify the accuracy of any information contained herein; and Ynitial LP n3[eement `Junta Ana 9.1,159.1.15 20 80A-119 16.8. Each Partner has been fully advised of the facts respecting the formation of the Partnership and has been given the opportunity to consult his attorney with respect to the Partnership. Each Partner hereby agrees that the offer and sale of the interest to it does not involve any public offering of such interest; and 16.9. The Limited Partner understands that there is no public market for the Units and none is expected to develop and he must continue to bear the economic risk of this investment for an indefinite period. Initial LP Ageeement -Santa Ana 9.1.1594.15 21 80A-120 Dated: September 1, 2015 General Partners: AMCAL Multi- sing Two LLC, a California limit inability company By: --- Percival Limited Partners: For: AMCAL Enterprises, Inc., a California corporation Arjun Nagarkatti, President initial W Agreement - Santa Ana A.1 .1 oS.l.xs 22 80A-121 EXHIBIT "A" AMCAL 1440 SANTA ANA FUND) L.P. CAPITAL CONTIUBUTION AND PARTNERSHIP INTEREST Column I Column 2 CAPITAL NAME OF PARTNER CONTRIBUTIONS % OF INTEREST % OF PROFIT AMCAL Multi -Housing Two LLC $ 1.00 1.00 1.00 an Administrative General Partner AMCAL Enterprises, Inc. $ 99.00 99.00 99.00 Limited Partner 'TOTAL: $ 100.00 100.00 100.00 initial 1.0 Aglaa... $Alit, Aird 9.1.159.1.15 23 80A-122 EXHIBIT "B" AMCAL 1440 SANTA ANA FUND, L.P. LEGAL DESCRIPTION All that certain real property situated in the County of Orange, State of California, described as follows: Parcel 1: The Easterly 112.51 feet of the Westerly 43751 feet of that portion of land allotted to N.O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the Final Decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B" Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the center lines of First Street and Mc Clay Street, as shown on a Map filed in Book 47 Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860 Page 4 of Official Records; Thence South 0' 06'40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08'20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Mc Clay Street; Thence North 00 06'40" West 398.34 feet to the point of beginning. Excepting therefrom, that portion of the North 71,00 feet as described in the Deed to the City of 1440 Santa Ana, recorded April 15, 1960 in Book 5196, Page 381 of Official Records. Parcel 2: A non-exclusive easement for ingress and egress over the South 25 feet of the Westerly 325 feet of that portion of the land allotted to N.Q. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: I.Adal by - sant. Ma 9.1.154.1.15 24 80A-123 Beginning at the intersection of the centerline of First Street and Mc Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 890 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397,90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Mo Clay Street; Thence North 00 06' 48" West 398.34 feet to the point of beginning. Parcel 3: The Westerly 175.00 feet of the Easterly 375.00 feet of that portion of the land allotted to N.O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West San Bernardino Base and Meridian; Thence North 89' 10' 10" East 812,56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 00 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08'20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06'48" West 398.34 feet to the point of beginning. Excepting therefrom, the South 21 feet of the North 71 feet thereof. Parcel 4: A non-exclusive easement for ingress and egress over the South 25 feet of that portion of the land allotted to N,O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, Initial en ngex¢ment - Santa Ana 9.1.159.1.15 25 80A-124 California, described as follows Beginning at the intersection of the centerline of First Street and Mc Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06'40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Mc Clay Street; Thence North 0° 0648" West 398.34 feet to the point of beginning. Excepting therefrom, the Easterly 375.00 feet Assessor's Parcel Number: 011-154-43 Snieial Lr l,gYeemeU - 6anca Na 9.1.159.1.15 26 80A-125 80A-126 EXHIBIT 3 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Division Manager SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Govennnent Code Section 6103] LOAN AGREEMENT by and between the HOUSING AUTHORITY OF THE CITY OF SANTA ANA ACTING AS THE HOUSING SUCCESSOR AGENCY and AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership (1440 East First Street, Santa Ana, California) Dated: February 2017 80A-127 LOAN AGREEMENT HOUSING SUCCESSOR AGENCY FUNDS THIS LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of February , 2017, is made and entered into by and between the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic ("Agency"), and AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership ("Developer") with reference to the following: RECITALS: A. The Agency is authorized by the Community Redevelopment Law of the State of California (Health and Safety Code section 33000, et seq.) ("CRL") to expend funds to increase the supply of very low and low income housing available at affordable housing costs. In part to further this goal, the Agency has created the Merged Project Areas, within the City (the "Project Area"), and adopted a Redevelopment Plan for the redevelopment of the Project Area. In accordance with Section 33334.2, et seq., of the CRL, the Agency sets aside a portion of the tax increment revenues it receives from the Merged Project Area in a separate low and moderate housing fund, which the Agency uses for the construction, preservation, and rehabilitation of affordable housing for low income households. B. Developer requested financial assistance in connection with the proposed development of a sixty-nine (69) unit affordable workforce housing complex ("Project") to be located at 1440 East First Street, Santa Ana, California, and legally described within Exhibit A attached hereto and incorporated herein ("Property"). The residential units will be located within six (6) buildings. The rental units (less one manager's unit) are 100% affordable to family households earning between 30% and 60% of the Area Median Income ("AMI"). The unit mix currently consists of six (6) four-bedroom units, twenty-eight (28) three-bedroom units, and thirty-five (35) two-bedroom units (one being a manager's unit). Eight (8) of the units will be assisted by the Santa Ana Housing Authority's Project -Based Voucher Program. On-site amenities will include a community room and amenity space including tot lots/play areas for children, outdoor seating, BBQ's, a flex play space and planters. The community room will be incorporated into the development, providing a computer laboratory, kitchen, activity room for resident activities, and office space for property management and social services staff. Developer will engage a qualified non- profit organization approved by the City (of which LifeSTEPS is hereby approved by the City) to provide free on-site social services to Project tenants. Services will be provided in the form of classes and workshops with the subject matter tailored by a social service coordinator to the specific needs of the community. C. The City of Santa Ana ("City") and the Housing Authority of the City of Santa Ana ("Housing Authority") reviewed Developer's request for assistance and at the City Council/Housing Authority meeting on December 20, 2016, the Housing Authority Board authorized and approved issuance of a conditional, pre -commitment letter evidencing the preliminary award of $6,195,000 of funds to the Project ("Agency Loan"), 80A-128 to be funded exclusively from the Low and Moderate Income Housing Asset Fund (the "LMIHAF") held by the Agency. D. The amount of the Agency Loan was determined based upon the City and Agency's review of the Developer's request for the receipt of the Agency Loan and the development proforma and projected cash flows for the Project submitted by the Developer to the City/Agency as of March 18, 2016 ("Proforma"). The Housing Authority's Executive Director has authority to approve revised development proformas and projected cash flows for the Project; provided, however, that the Agency Loan is not materially increased or extended. E. hi furtherance of the CRL and the Redevelopment Plan, Developer has applied to the Agency for a loan with which to: Provide deeper affordability and construct the improvements to the Property, and 2. Thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. F. The Agency, on certain terms and conditions, desires to make such Agency Loan to Developer in order to make possible the construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. G. If there is any inconsistency between Federal, State, and local guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, Agency and Developer agree as follows: DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Project Documents, unless otherwise expressly defined, are defined where first used in this Agreement and/or as set forth in this Article 1. "Affordable Housing" means the total housing costs paid by a qualifying household, which shall not exceed the fraction of gross income specified, as follows, in accordance with Sections 50052.5 and 50053 of the Health & Safety Code: Very Low -Income Households. Thirty (30) percent of the income of a household earning fifty (50) percent of the Orange County median income adjusted for family size appropriate for the unit. Low -Income Households. Thirty (30) percent of the income of a household earning seventy (70) percent of the Orange County median income for for -sale units, and 80A-129 thirty (30) percent of the income of a household earning sixty (60) percent of the Orange County median income for rental units, adjusted in either case for family size appropriate for the unit. In the event of a conflict between the fractions specified in this definition and those found in Sections 50052.5 and 50053 of the Health & Safety Code, the fractions specified by State law shall control. "Affordability Restrictions on Transfer of Property" means that certain document affecting real property benefiting the Agency, attached hereto and incorporated herein as Exhibit B. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the California Tax Credit Allocation Committee (TCAC), or by the State of California, as applicable. "Agency" means the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the CRL. The principal office of the Agency is located at 20 Civic Center Plaza, Santa Ana, California 92702. "Agency" shall also refer to the City where the context dictates, to the effect that City shall have all rights granted to the Agency hereunder. "Agency Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit C, to be executed by Developer pursuant to Section 5.13.1 in order to secure the Agency Loan Note. "Agency Loan" means a loan in the original principal amount of up to six - million, one -hundred and ninety-five thousand dollars ($6,195,000) to be made to Developer by the Agency to be funded exclusively from the Low and Moderate Income Housing Asset Fund held by the Agency. "Agency Promissory Note" means that certain promissory note for Agency Loan funds in the original principal amount of $6,195,000 in the form attached hereto as Exhibit D, and to be executed by Developer in favor of Agency to evidence the obligation of Developer to repay the Agency Loan through residual receipts as further described in the Agency Promissory Note. "Building Permit" means the building permit(s) issued by City and required for the construction. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. 80A-130 "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City" shall also refer to the Agency where the context dictates, to the effect that the Agency shall have all the rights granted to the City hereunder. "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Agency Loan Agreement and Agency Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Developer's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Developer" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Developer's Representative" shall mean an officer of the General Partner of Developer or his/her designee. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. "Event of Default" has the meaning set forth in Section 20.1. "General Partner" means AMCAL Multi -Housing Two LLC, a California limited liability company. "Governmental Authority" means any governmental or quasi - governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. Hazardous Material shall not include (i) construction products, household cleaners and office materials of the type and quantity ordinarily used in the normal construction, operation and maintenance of properties similar to the Project or (ii) small amounts of household mold to the extent promptly remediated upon discovery. 80A-131 "Housing Authority" means the Housing Authority of the City of Santa Ana, a public body, corporate and politic. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "HCD" means the California Department of Housing and Community Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements, as required through the City of Santa Ana Planning and Building Agency entitlement process. "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non-recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 14.5. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Documents" or "Agency Loan Documents" means, collectively, this Agreement, the Agency Promissory Note, the Agency Deed of Trust, and the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the Agency reasonably requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HCD. Also may be referred to interchangeably in the Agency Loan Documents as "Area Median Income" or "AMP'. 80A-132 "Partnership Agreement" means the Agreement of Limited Partnership of AMCAL 1440 SANTA ANA FUND, L.P., dated as of September 1, 2015 attached herein as Exhibit H. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the Agency Deed of Trust" means the Senior Loan Deed(s) of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Developer pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached hereto as Exhibit E, as modified from time to time in accordance with this Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 1440 East First Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Scope of Work/Schedule of Performance" means the detailed statement of the work to be performed by Developer on and to the Property pursuant to this Agreement, along with the Schedule of Performance setting forth timeframes for certain tasks, which document is attached hereto as Exhibit F. "Senior Lender" means a cormnercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender concurrent to the Agency Loan for payment of a portion of the acquisition and construction costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Senior Loan Deed of Trust" means the first deed(s) of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. 80A-133 "Term of Affordability" means the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD in accordance with Sections 50052.5 and 50053 of the Health & Safety Code. 1.2 Sin¢ular and Plural Terms. Any defined term used in the plural in this Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 References and Other Terms. Any reference to this Agreement shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation." 1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. [RESERVED] 3. SCOPE OF WORK/PROJECT BUDGET A "Scope of Work" and "Schedule of Performance" for the Property is attached hereto as Exhibit F. Any material change to the Scope of Work/Schedule of Performance requested by the Developer shall be subject to the prior written approval of the City Project Manager. The Scope of Work/Schedule sets forth the construction work that shall be performed on the Property and timeframes for approvals and such work. A line -item budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit E ("Project Budget"). Any material change to the Project Budget requested by Developer shall be subject to the prior written approval of the City Project Manager. 4. [RESERVED] 5. AGENCY LOAN: The Agency Loan shall be evidenced by the Agency Promissory Note in the form attached hereto as Exhibit D. The Agency Loan shall be secured by the Agency Deed of 80A-134 Trust in the form attached hereto as Exhibit C. The terms and conditions of the Agency Loan are as set forth in the Agency Promissory Note. The term of affordability for the Project is fifty-five (55) years from the receipt of Certificate of Occupancy for the Project, or repayment of the Agency Loan, whichever is longer. 5.1. Agency Funds: A. Amount and Purpose. Subject to the terms and conditions of this Agreement, Agency agrees to make a loan to Developer from the Low and Moderate Income Housing Asset Fund ("LMIHAF") in the principal amount of up to $6,195,000.00 for the construction and other costs of the Project. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent. Agency's obligation to disburse the loan is subject to the satisfaction of the following conditions precedent: (a) Housing Authority. Review and approval of the documents evidencing the Agency Loan by the Housing Authority of the City of Santa Ana acting as the Housing Successor Agency. (b) Code Com lin ante. Compliance with California Health and Safety Code and applicable regulations set forth in Section 34176. (c) Environmental Review. Compliance with and completion of environmental review of the Project pursuant to the California Environmental Quality Act ("CEQA") and approval thereof. (d) Affordability Restrictions. The funding of $6,195,000 is from the Low and Moderate Income Housing Asset Fund, which requires legal restrictions that the Agency cannot amend or repeal. Sixty-eight (68) of the sixty-nine (69) "Housing Units" at the Project shall and will be restricted to "Affordable Rent" as defined by the California Tax Credit Allocation Committee (TCAC) Regulations for a period not less than fifty-five (55) years pursuant to conditions, covenants and restrictions recorded against the Project in the Official Records, County of Orange, California. Thirty-four (34) of the sixty-eight (68) Housing Units at the Project shall and will be restricted to households earning 30% or less of the AMI, unless the City and the Developer reasonably determine that it is necessary for a lesser number of Housing Units at the Project to be restricted to households earning 30% or less of AMI to cause the Project to be competitive for tax credit financing and/or to be financially viable. One (1) Housing Unit will be rented to an on-site property manager; the manager's unit will not be rent restricted. (e) Loan Documents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signatme(s) acknowledged where necessary, each of the following documents: (i) this Agency Loan Agreement; 80A-135 (ii) the Agency Promissory Note ($6,195,000); (iii) the Agency Deed of Trust; and, (iv) the Affordability Restrictions on Transfer of Property (f) Title Insurance. Agency shall have received an American Land Title Association (ALTA) Extended (LP -10) Loan Policy (6-17-06), or evidence of a commitment therefore satisfactory to Agency, issued by Commonwealth Land Title Insurance Company and in form and substance satisfactory to Agency, together with all endorsements and binders required, naming Agency as the insured, in a policy amount of not less than the total Agency Loan Amount, showing Developer as the fee owner of the Property and insuring the Agency Deed of Trust to be a valid priority lien on the Property. This Agreement, the Agency Promissory Note, and the Agency Deed of Trust shall all be subordinate to the Senior Loan Note and Senior Loan Deed of Trust. (g) Affordability Restrictions on Transfer of Property. Developer shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit B, the Affordability Restrictions on Transfer of Property pursuant to which, among other things, Developer agrees that the Property shall be used only for decent, safe, sanitary and affordable rental housing pursuant to the affordability requirements of California Health and Safety Code ("H&S") sections 50052.5 and 33334.3, as applicable. The Agency's Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated. (h) Documents Recorded. This Loan Agreement, the Agency Deed of Trust, and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. (i) Request for Notice. For the benefit of Agency, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default"). 0) Insurance. Agency shall have received evidence satisfactory to the City Attorney that all of the policies of insurance required by Section 19 of this Agreement are in full force and effect. (k) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct in all material respects as of the Close of Escrow as though made on and as of that date, and if requested by the City Project Manager, Agency shall have received a certificate to that effect signed by Developer's Representative. (1) No Default. No Event of Default by Developer shall have occurred, and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer under this Agreement, and if requested by the City Project Manager, Agency shall have received a certificate to that effect signed by Developer's Representative. 80A-136 (m) The Agency's obligation to provide the Agency Loan is and shall remain subject to all covenants, conditions, and restrictions set forth in this Loan Agreement, and in particular Agency's analysis of the available funding sources and development and operating costs of the Project and the overall economic feasibility of the Project. 6.2 Disbursement Procedures for Loan. The Agency Loan proceeds shall be disbursed through Escrow to finance the acquisition, development and construction of the Project (as evidenced in Exhibit E). The Agency Loan proceeds shall not be used for any purpose other than for acquisition and predevelopment and construction related costs, including Developer fee and soft costs related to the development of the Project (costs all subject to Agency's prior review). 6.3 First Disbursement. Agency's obligation to make the first disbursement of the Loan is subject to satisfaction of the following conditions precedent: (a) All grading permits shall have been issued or the City shall have issued a letter stating that building permits are ready to issue, subject only to payment of fees and the completion of grading of the Project site. (b) Developer shall have secured all necessary financing and funding for the construction and operation of the Project. Such financing and funding shall be sufficient to pay all Project development costs, through lease -up, as set forth in the final budget consistent with the approved Proforma (or as otherwise approved by the Agency). (c) Developer shall have provided evidence to the Agency that the Developer has obtained insurance policies and certificates or endorsements acceptable to the Agency, as described in this Loan Agreement. (d) Developer shall have provided construction security in favor of the Agency, which may include a completion guarantee from AMCAL Multi -Housing, Inc. and/or a letter of credit and/or performance and payment bonds from the general contractor for the Project (or some combination of these), in an amount sufficient to ensure the Project will be completed and placed in service within the time set forth in the Project schedule approved by the Agency. (e) Developer shall submit and obtain the Executive Director of the Housing Authority's approval of the construction contract, the identity and qualifications of the General Contractor, Developer's limited partnership agreement for the limited partnership entity to be formed to own and operate the Project, and management, marketing and tenant selection plans for the Project. 6.4 Termination for Failure of Condition. If (a) any of the conditions set forth herein are not timely satisfied (subject to applicable notice and cure rights), and (b) Agency is not in default under this Agreement, Agency may terminate this Agreement without any further liability on its part by giving written notice of termination to Developer. 80A-137 Upon the giving of such notice, all principal, interest and other amounts owing under the specified due date. 6.5 Any Disbursement. Agency's obligation to make any disbursement of the Loan, including the first and final disbursements, is subject to the satisfaction of the following conditions precedent: (a) Satisfactory Progress. The City Project Manager shall be satisfied that, based on his/her own inspections or other reliable information, the construction is progressing satisfactorily in conformance with all applicable laws and other requirements (including the City's Inclusionary Housing guidelines). (b) Condition of Title. Either (i) the City Project Manager reasonably believes that no event has occurred since the Close of Escrow that would give rise to a colorable claim against the Property (e.g., a mechanic's lien) superior to the claim of Agency against the Property with respect to the subject disbursement, or if such claim is made, then City Project Manager shall receive satisfactory evidence that such claim has been bonded over until its resolution; or (ii) Agency must have received, at Developer's expense but payable out of the Loan proceeds from the title insurer who issued City's LP - 10 Title Policy, all endorsements thereto then reasonably required by Agency (including, without limitation, CLTA Form 122 -- priority of advance endorsements). (c) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Agency Loan Documents shall be correct in all material respects as of the date of the disbursement as though made on and as of that date. (d) No Default. No Event of Default by Developer shall remain uncured (unless, to the extent permitted under this Agreement, Developer is diligently taking action to cure such default) and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer. 6.6 Final Disbursement. Agency's obligation to disburse that portion of the Loan funds retained pursuant to Section 6.12 is subject to the satisfaction of the following additional conditions precedent: (a) Construction complete. The construction of the Project shall be complete. (b) Certificate of Occupancy Issued. Any portion of the construction work requiring inspection or certification by any Governmental Authority shall have been inspected and certified as complete. Developer shall request that the Building Department issue a Certificate of Occupancy, a copy of which shall be delivered to the City Project Manager, in order for final disbursement to occur. (c) Lien Free. At least one of the following shall have occurred: 80A-138 (i) Thirty-five (35) days shall have passed since the recording of a valid notice of completion for the construction, and no mechanic's or materialman's lien shall be outstanding; or (ii) Ninety-five (95) days shall have passed since actual completion of the construction, and no mechanic's or materialman's lien shall be outstanding, or Developer shall have bonded over any such lien to Agency's reasonable satisfaction. 6.7 Waiver of Conditions. The conditions set forth pertaining to Agency's obligation to make disbursements of the Loan proceeds are for Agency's benefit only and the City Project Manager may waive all or any part of such rights by written notice to Developer. 6.8 Disbursement Requests. The Loan proceeds shall be disbursed on a line - item by line -item basis in accordance with the Project Budget and subject to the conditions in this section. In no event shall Agency have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Project Budget. Disbursements shall be made only upon Developer's written request in the form of a Disbursement Request showing all costs which Developer intends to fund with such disbursement, itemized in such detail as Agency may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to Agency, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b) all other documents and information reasonably required by Agency. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by Agency of proceeds of the loan, Developer shall deliver to Agency a draw request ("Draw Request"), and all required supporting information as set forth in the Agency Loan Documents or as otherwise reasonably required by Agency in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. Agency shall notify the Developer of approval or disapproval of each Draw Request within five (5) Business Days after receipt of the Draw Request, using the Agency's "Disbursement/Change Order Approval Notice". Agency shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request. 6.9 Manner of Disbursement. Agency may make any disbursement by check payable to Developer; or on a voucher basis; or by check payable jointly to Developer and any contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by Agency. 6.10 Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by Agency or Developer to be required to complete all matters included in any line item in the ,Project Budget exceeds the amount allocated to 80A-139 that line item in the Project Budget, (b) Project costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the Loan proceeds and all other approved financing sources are or may be insufficient to pay all construction of the Project that may be payable under the Agency Loan Documents or otherwise in connection with the construction, Developer shall, within ten (10) days after it receives written notice thereof from Agency of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to Agency that Developer has previously paid such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost") with funds from a source other than the Agency Loan; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Project Budget; provided, however, that the City Project Manager's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non-interest bearing account (the "Overrun Account") with Agency from which withdrawals may be made only with the consent of the City Project Manager but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Project Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. Agency shall have no obligation to make further disbursements until Developer has paid or otherwise provided for the overrun as required above. Amounts deposited by Developer in the Overrun Account for any Excess Costs shall be disbursed by Agency prior to the disbursement of any remaining Loan proceeds in the manner described in subsection 9.3(c). 6.11 Cost Savings. Upon completion of and disbursement for all matters covered by any line items in the Project Budget, any remaining undisbursed amounts allocated to that line item shall be reallocated to "Contingency" and thereafter be available for disbursement in accordance with the terms of this Agreement. 6.12 Retainage. Agency will withhold a Retainage of 10% from each Disbursement for each of the Hard Cost line items of the Project Cost Breakdown (and other line items thereof designated for withholding of retainage) until all conditions to the final Disbursement of Hard Costs have been satisfied. In lieu of Agency's withholding Retainage, Developer can by written notice to Agency elect not to draw any overhead or profit as would otherwise be permitted under the Construction Contract until such time as Retainage would otherwise have been released. Agency shall not retain funds for building materials purchased by Developer for which Developer supplies documentation to Agency proving payment in full, land acquisition costs, or for soft costs. 6.13 Holdback. The retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost (as 80A-140 determined by the City Project Manager) for "punch -list" items. Such holdback will be released when all punch -list items have been completed to the satisfaction of Agency. 6.14 Waiver of Disbursement Conditions. Unless Agency otherwise agrees in writing, the making by Agency of any disbursement with knowledge that any condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made, and such condition shall be conditioned to all further disbursements until fulfilled. 6.15 Modification of Disbursement Conditions and Procedures. The City Project Manager shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the contract for construction. 6.16 Other Terms and Conditions of Loan. A. The Note shall become immediately due and payable, in the event of any of the following: (1) Failure to be awarded tax credits within two (2) years of the recording date and failure to complete the Project within four (4) years of the recording date; (2) Violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cine periods; or, (3) An Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement. 6 .17 Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROJECT 7.1 Use Covenants and Restrictions. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all of the rental units on the Property available to extremely low, very low and low income households at rents affordable to such households for fifty-five (55) years (except for one (1) unit for the onsite manager). The Project shall consist of sixty-nine (69) residential units. Enforceability of restrictions on the sixty-eight (68) units shall be enforced until the date that is fifty-five (55) years after the date on which the Certificate of Occupancy is issued. 7.2 Affordability Levels/Unit Mix: The proposed unit mix and levels of affordability are as follows: 80A-141 Bedroom Size 30% AMI 40% AMI 50% AMI 60% AMI Manager's Unit Total Two Bedroom 29 0 4 1 1 35 Three Bedroom 4 0 17 7 28 Pour Bedroom 1 0 0 5 6 Totals 34 0 21 13 1 69 * The affordable rents charged at the Project must comply with the standards set forth by the California Tax Credit Allocation Committee (TCAC). * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The Housing Authority of the City of Santa Ana publishes a utility allowance schedule on an annual basis, provided, however, in lieu of the utility allowance published by the Housing Authority the Developer may elect to use the California Utility Allowance Calculator to the extent allowed by TCAC. 7.3 Rent Increases: On an annual basis, the Agency shall provide the Developer with the maximum allowable schedule of rents for the Property which shall correspond to the maximum rent increase allowed by TCAC. In no event can Developer charge any tenant more than such amount. 7.4 Maintenance of the Property. Solely at Developer's expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from the Agency, unless such condition cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure, the Agency may perform the necessary maintenance and Developer shall pay all reasonable costs incurred for such maintenance. The Agency shall inspect the Property annually after the date of issuance of the Certificate of Completion as described in Section 17 of this Agreement. 7.5 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, disability, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement. 80A-142 8. DEFAULTS AND REMEDIES 8.1 Event of Default. Failure or delay by either party to perform any term or provision of this Agreement within the time periods provided herein for such performance constitutes a default under the Agreement. If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with this section. The injured parry shall give written notice of default to the party in default, specifying the default complained of by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (3 0) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the Agency shall have the right to terrninate this Agreement by delivery of written notice of termination to Developer. 8.2 Institution of Legal Actions. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default to recover economic damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.4 Damages. In the event that the Agency is liable for damages to Developer, such liability shall not exceed costs incurred by the Developer in the performance of this Agreement and shall not extend to compensation for loss of future income, profits or assets. 8.5 Nonrecourse Liability. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, or the attached Note and Deed of Trust, and any judgment, decree or order for the payment of money obtained in any action to enforce the obligation of Developer to repay the loan evidenced by such documents shall be enforceable against Developer only to the extent of Developer's interest in the Property. 9. GENERAL PROVISIONS AND WARRANTIES As a material inducement to Agency to enter into this Agreement, Developer represents and warrants as follows: 9.1 Formation, Qualification and Compliance. AMCAL 1440 Santa Ana Fund, L.P. is a California limited partnership. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other 80A-143 authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 9.2 Execution and Performance of A2ency Loan Documents. 9.2.1 Developer has all requisite authority to execute and perform its obligations under the Agency Loan Documents. 9.2.2 The execution and delivery by Developer of, and the performance by Developer of its obligations under, each Loan Document that has been authorized by all necessary action and does not and will not: (a) require any consent or approval not heretofore obtained of any person having any interest in Developer; (b) violate any provision of, or require any consent or approval not heretofore obtained under, any articles of incorporation, by-laws or other governing document applicable to Developer; (c) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the Agency Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (d) to best of its knowledge, violate any provision of any law presently in effect; or (e) constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or document to which Developer is a party or by which Developer or any of its property is bound. 9.2.3 Developer is not in default, in any respect that is materially adverse to the interests of Agency under the Agency Loan Documents or that would have any material adverse effect on the financial condition of Developer or the conduct of its business, under any law, contract, lease or other agreement or document described in sub- paragraph (d) or (e) of the previous subsection. 9.2.4 No approval, license, exemption or other authorization from, or filing, registration or qualification with, any Governmental Authority is required which has not been previously obtained in connection with: (a) the execution by Developer of, and the performance by Developer of its obligations under, the Agency Loan Documents; and Documents. (b) the creation of the liens described in the Agency Loan 80A-144 9.3 Financial and Other Information. To the best of Developer's knowledge, all financial information furnished to Agency by the Developer or any affiliate thereof with respect to Developer in connection with the Loan (a) is complete and correct in all material respects as of the date of preparation thereof, (b) accurately presents the financial condition of Developer, and (c) has been prepared in accordance with generally accepted accounting principles consistently applied or in accordance with such other principles or methods as are reasonably acceptable to Agency. To the best of Developer's knowledge, all other documents and information furnished to Agency by the Developer or any affiliate thereof with respect to Developer, in connection with the Loan, are correct and complete insofar as completeness is necessary to give the Agency accurate knowledge of the subject matter. To the best of Developer's knowledge Developer has no material liability or contingent liability not disclosed to Agency in writing and there is no material lien, claim, charge or other right of others of any kinds (including liens or retained security titles of conditional vendors) on any property of Developer not disclosed in such financial statements or otherwise disclosed to Agency in writing. 9.4 No Material Adverse Change. There has been no material adverse change in the condition, financial or otherwise, of Developer since the dates of the latest financial statements furnished to Agency. Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to Agency in writing. 9.5 Tax Liability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawful extensions disclosed to Agency in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Developer is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to Agency. 9.6 Governmental Requirements. To best of its knowledge, Developer is in compliance with all laws relating to the Property and all Governmental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Environmental Quality Act and the National Environmental Policy Act and the preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements. 9.7 Rights of Others. Developer is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.8 Litigation. There are no material actions or proceedings pending or, to the best of the Developer's knowledge, threatened against or affecting Developer or any property of Developer before any Governmental Authority, except as disclosed to Agency in writing prior to the execution of this Agreement. 80A-145 9.9 Bankruptcy. To the best of Developer's knowledge, no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Developer, nor are any of such proceedings contemplated by Developer. 9.10 Information Accurate. To the best of Developer's knowledge, all information, regardless of its form, conveyed by Developer to Agency, by whatever means, is accurate, correct and sufficiently complete to give Agency true and accurate knowledge of its subject matter, and does not contain any misrepresentation or omission. 9.11 Conflicts of Interest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she has a direct or indirect financial interest. The Developer warrants that it neither has paid nor given, nor will pay or give, any third party any money or other consideration for obtaining this Agreement. 9.12 Nonliability of Agency Officials and Employees. No member, official or employee of the Agency shall be personally liable to the Developer in the event of any default or breach by the Agency or for any amount which may become due to Developer or on any obligations under the terms of this Agreement. 9.13 No Assignment. Developer expressly acknowledges and agrees that the Agency has only agreed to assist the Developer as a means by which to induce the construction/development of the Project. Accordingly, Developer further expressly ackriowledges and agrees that this Agreement is a personal right of Developer that is neither negotiable, transferable, nor assignable except as set forth herein. Developer may assign some or all of its rights under the Agreement only with the prior written consent of the Agency Project Manager (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assignment by a limited partner of Developer to an affiliate, for the inclusion of tax credit investors in the Agreement, or as otherwise provided in the Deed of Trust. 9.14 Applicable Law, This Agreement shall be interpreted, governed and enforced under federal and California state law with venue in Orange County, California. 9.15 Third Parties. This Agreement is made for the sole benefit of Developer and the Agency and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the Agency hereunder or arising from any default by Developer, nor shall the Agency owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the construction of the Property. 9.16 Control of Propertv. The parties aclmowledge that the Agency has not at anytime participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 80A-146 10. CONDITIONS FOR CONSTRUCTION 10.1 Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of Governmental Agencies required in connection with the construction and conversion of the Property. 10.2 Commencement and Completion of Construction. The constriction of the Project shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by Governmental Authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 10.3 Chance Orders. The contract for construction shall not be modified except pursuant to change orders. All change orders in excess of $10,000: (a) Shall be in writing, numbered in sequence, signed by Developer and submitted to Agency prior to the proposed effectiveness thereof and accompanied by any working drawings and a written narrative of the proposed change; and, (b) Shall be subject to the City Project Manager's prior written approval. 10.4 Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice and subject to reasonable job site safety rules, Agency and its agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the construction are stored, (b) the right to inspect all labor performed and materials furnished for the construction, and (c) the right to inspect and copy all documents pertaining to the construction. 10.5 [RESERVED] 10.6 Construction Information. From time to time during the course of the construction, within ten (10) Business Days following Agency's written demand therefore, Developer shall furnish requested reports of project costs, progress schedules and contractors' costs breakdowns for the construction, itemized as to trade description and item, showing the name of the contractor(s) and/or subcontractor(s), and including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7 Protection Against Liens: Developer shall diligently file a valid Notice of Completion upon completion of the construction, diligently file a notice of cessation in the event of a cessation of labor on the construction for a period of thirty (30) days or more, and take all actions reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the Agency by any person furnishing labor or materials 80A-147 to the Property, Developer shall immediately give written notice of the same to Agency and shall, promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay and discharge the same, (b) effect the release thereof by delivering to Agency a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as Agency may require to release Agency from any obligation or liability with respect to such stop notice or claim. 11. COVENANTS 11.1 [RESERVED] 11.2 Qualification as Affordable Housing. As more particularly provided in the Affordability Restrictions on Transfer of Property, Developer shall use, manage and operate the Property in accordance with the requirements of California Health and Safety Code section 50052.5 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.3 [RESERVED] 11.4 [RESERVED] 11.5 Handicapped Accessibility. Developer shall comply with (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations at 24 CFR 8C; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36 in order to make the Project readily accessible to and usable by individuals with disabilities. 11.6 [RESERVED] 11.7 [RESERVED] 11.8 Lead -Based Paint. Developer shall comply with the requirements, as applicable of the Lead -Based Paint Poisoning Prevention Act. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property as required by and the City of Santa Ana's adopted affirmative marketing procedures and minority outreach program. 11.10 Equal Opportunity and Fair Housing. Developer shall carry out the construction and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing described in. Developer must also follow the requirements of California Health and Safety Code section 33435. 11.11 Property Standards. Developer shall cause the Property to meet, as well as all applicable local, state and federal codes and ordinances, including zoning ordinances. Developer shall also cause the Property to meet the current edition of the Model Energy Code published by the Council of American Building Officials. .O I � ' OO 11. 12 [RESERVED] 11.13 [RESERVED] 11.14 Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of funds under this Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the rehabilitation and soft costs of the Project). The amount of each request shall be limited to the amount needed. 11.15 Eligible Costs. Developer shall use Agency Low and Moderate Income Housing Asset Fund Funds to pay costs within the Project Budget attached herewith as Exhibit E. 11.16 Records and Reuorts. Developer shall maintain and from time to time submit to Agency such records, reports and information as the City Project Manager may reasonably require in order to meet Agency record keeping and reporting requirements. 11.17 [RESERVED] 11.18 Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth in all applicable state regulations pertaining to conflict of interest. 11.19 Monitoring. Developer shall allow the Agency to conduct periodic inspections of each of the assisted units on the Property as required by the Housing Opportunity Ordinance after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the Agency while conducting such inspections within two weeks of written notice thereof, or such longer period as is reasonable within the sole discretion of the Agency. 11.20 Recertification of Tenant Income. (a) Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis. At a minimum, every fifth (5th) year, Developer shall require new original income documents to be submitted by tenants. (b) Developer shall allow the Agency to conduct periodic reviews of tenant files and files relating to affirmative marketing and outreach to insure the Project's compliance with applicable regulations and guidelines. (c) Agency assisted units continue to qualify as affordable housing despite a temporary non-compliance caused by increases in the incomes of existing tenants if actions satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance with this section until the non-compliance is corrected. 80A-149 11.21 Other Requirements. Developer shall comply with all other applicable requirements of the Housing Opportunity Ordinance, including the following: (a) Onsite Services: The Developer shall provide on-site services that are available to the residents and shall report to the Agency annually the services provided. (b) Coordination with the WORK Center: The Developer and the Property Manager shall coordinate with the City's WORK Center to provide services and outreach to tenants, as well as provide information on employment during the construction of the Project. (c) Tenant Satisfaction Survey: The Developer shall complete and submit to the Agency biennial tenant satisfaction surveys of tenants. (d) Rental Inclusionary Housing Manual: The Developer shall also maintain compliance with the City's Inclusionary Housing Manual for Rental Projects. 11.22 Controlling Covenants. If there is a discrepancy between Local, State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1 Maintenance. Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a business- like manner; shall prudently preserve and protect its own as well as the Agency's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected; and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Property or of any other impairment of Agency's interests under the Agency Loan Documents. Without limiting the generality of the foregoing, and except as otherwise agreed by Agency in writing from time to time, Developer shall promptly and faithfully perform and observe each of the following provisions: 12.1.1 Alterations and Repair. Developer shall not remove, demolish or materially alter any Improvement without Agency's prior consent, except to make non- structural repairs which preserve or increase the Property's value, and shall promptly restore, in a good and professional manner, any Improvement (or other aspect or portion of the Property) that is damaged or destroyed from any cause. 12.2 Compliance. Developer shall comply with all laws and requirements of Governmental Authority (including, without limitation, all requirements relating to the 80A-150 obtaining of Governmental Authority approvals), all Governmental Authority approvals and all rights of third parties, relating to Developer, the Property or Developer's business thereon. 12.3 Taxes and Impositions. Subject to any property tax abatement available to the Developer shall pay, prior to delinquency, all of the following (collectively, the "Impositions"): (a) all general and special real property taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges of every kind that are assessed upon the Property (or upon the owner and/or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non-governmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on Agency (other than Agency's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any hnposition in installments (together with any accrued interest). 12.3.1 Right to Contest. Developer shall not be required to pay any hnposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to Agency's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair the Agency's interests under the Agency Loan Documents, and (c) Developer has furnished Agency with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 12.3.2 Evidence of Payment. Upon demand by Agency from time to time, Developer shall deliver to Agency, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to Agency. 12.3.3 Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to Agency. 12.4 [RESERVED] 12.5 Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ("Project Operating Account"). Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Operating Budget, as it may be revised from time to time with prior Agency approval. Developer may make withdrawals from this account solely for the payment of project expenses and project fees. Withdrawals from this account for other purposes may be made only with the prior written approval of the Agency. 80A-151 12.6 Replacement Reserve Account. Developer must establish or cause to be established a segregated replacement reserve depository account ("Replacement Reserve Account") no later than the commencement of the permanent financing period for the Project. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with Developer's Budget, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the Project that are reasonably required to preserve the Project. Developer may not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the Agency. 13. NONDISCRIMINATION COVENANTS 13.1 Obligation to Refrain from Discrimination. Developer covenants and agrees that: (a) In Use of Property. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, disability, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property. (b) In Affordable Housing Restrictions. The foregoing covenant shall (a) be included in the Affordability Restrictions on Transfer of Property, (b) run with the land, and (c) remain effective for the term of the contract (for 55 years). (c) In Employment. In construction on the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, disability, national origin, or ancestry. Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, disability, creed, religion, sex, marital status, disability, national origin, or ancestry. (d) In all Contracts. Developer shall cause the foregoing covenants to be inserted in all contracts for any work covered by this Agreement so that such provisions will be binding upon each contractor for the benefit of Agency, provided that the foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. 14. ENVIRONMENTAL MATTERS 14.1 Representation and Warranty. Except as disclosed in writing to the Agency, Developer has no knowledge (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous Materials, (b) that asbestos or polychlorinated biphenyls 80A-152 (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. 14.2 Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and environmental permits applicable to the construction of the Property, (b) immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, (c) keep the Property free and clear of any environmental claims or liens imposed pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. 14.3 Presence of Hazardous Materials. Developer shall not, and shall not permit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in compliance with all applicable environmental laws and required in connection with the routine operation and maintenance of the Property. 14.4 Notice of Environmental Matters. Developer shall immediately advise Agency in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable environmental law, (ii) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental Law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. 14.5 Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the Agency and its respective officers, directors, employees and agents (collectively the "Indemnitees") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be incurred by, imposed on, or asserted against the Indemnitees directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property other than resulting from the gross negligence or willful misconduct of any Indemnitee.. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the Agency Promissory Note or Agency Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 15.1 Existence. The sole member of Developer's managing general partner shall maintain its existence in good standing under the laws of the State of California, and Developer shall provide documentation of such status annually to the Agency. 15.2 Protection of Lien. Developer shall maintain the lien of the Agency Deed of Trust as a valid second priority deed of trust on the Property and take all actions, and 80A-153 execute and deliver to Agency all documents, reasonably required by Agency from time to time in connection therewith. 15.3 Notice of Certain Matters. Developer shall give notice to Agency, within ten (10) days of Developer's learning thereof, of each of the following: (a) any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $5,000; and any litigation or claim that might subject Developer or any general partner to liability in excess of $5,000, whether covered by insurance or not; (b) any dispute between Developer and a Governmental Authority relating to the Property, the adverse determination of which might materially affect the Property; (c) any change in Developer's principal place of business; (d) any aspect of the Improvements that is not in substantial conformity with the plans or code; (e) any Event of Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default; (f) any material default by Developer or any other party under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; (g) the creation or imposition of any mechanics' or materialmans' lien or other lien against the Property which might materially affect the Property; and/or (h) any material adverse change in the financial condition of Developer. 15.4 Further Assurances. Developer shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to Agency all documents, and take all actions, reasonably required by Agency from time to time to confirm the rights created or now or hereafter intended to be created under the Agency Loan Documents; to protect and further the validity, priority and enforceability of the Agency Deed of Trust; to subject to the Deed of Trust any property intended by the terms of any Loan Document(s) to be covered by the Agency Deed of Trust or otherwise to carry out the purposes of the Agency Loan Documents and the transactions contemplated thereunder. 15.5 Annual Financial Statements. Developer shall deliver to Agency, within one hundred fifty (150) days after the end of each Calendar Year, (a) a certified public accountant reviewed balance sheet for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations in connection with the Property for such Calendar Year, together 80A-154 with all supporting schedules, (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements, and (c) a certificate of Developer's chief financial officer that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to Agency, (ii) fairly present Developer's financial condition, (iii) show all material liabilities, direct and contingent, and (iv) fairly present the results of Developer's operations. Developer shall also provide the Agency with any other annual audit reports issued by other monitoring agencies. Developer shall include in said reports, a document in the "Form of Residual Receipts Report" attached hereto as Exhibit G and incorporated herein. 15.6 Audits and Access to Records. Developer agrees that Agency or any of their authorized representatives shall have the right of access, upon reasonable notice and during normal business hours, to any books, documents, papers, or other records of Developer which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the affordability or recapture period ends. 15.7 Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the Agency every fifth (5th) year beginning January 2023. 16. OTHER COVENANTS While any obligation of Developer under the Agency Note or Agency Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 16.1 Default on Senior Loan. Developer shall not default on any of the Senior Loan documents, provided however, that Developer shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2 Sale or Lease of Property. Unless and until Developer has received a Certificate of Completion for the construction from Agency, Developer shall not sell, lease (other than to tenants meeting the requirements set forth in this Agreement), sublease or otherwise transfer all or any part of the Property or any interest therein without the prior written consent of the City Project Manager, which consent may be withheld in the City Project Manager's reasonable discretion. In connection with the foregoing consent requirements, Developer acknowledges that Agency relied upon Developer's particular expertise in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory completion of the construction. 80A-155 Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) a transfer of a General Partner's interest in Developer when made in connection with the exercise by the Developer's limited partner (the "Limited Partner") of its rights upon a default by a General Partner under the Developer's Partnership Agreement (the "Partnership Agreement") or upon a General Partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting General Partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the General Partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the Managing General Partner pursuant to the right of first refusal or to one or more of the General Partners pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of the Limited Partner's interest in the Developer or of an interest in the Limited Partner. 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the construction and upon the request of Developer, or at its own election, the Agency shall issue a Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction. If Agency declines to furnish a Certificate of Completion after written request from Developer, the City Project Manager shall, within thirty (30) days after receipt of the request, provide Developer with a written statement of the reasons therefore. The statement shall contain a description of the action Developer must take to obtain a Certificate of Completion. If the reason therefore is that the Developer has not completed a minor portion of the construction, Agency may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with Agency of a bond or other form of security acceptable to the City Project Manager in the amount of the fair value of the uncompleted work. A Certificate of Completion is not evidence of compliance with or satisfaction of the Agency Loan Documents or any obligation of Developer to any other party whatsoever, including any holder of a mortgage or deed of trust. A Certificate of Completion is not "notice of completion" referred to in Section 3093 of the California Civil Code. 18. INDEMNIFICATION 18.1 Nonliability of Agency. Developer acknowledges and agrees that: (a) The relationship between Developer and the Agency is and shall remain solely that of Developer and lender. Agency neither undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter in connection with the construction, including matters relating to: (i) the performance of the construction work, (ii) architects, contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, or (iii) the progress 80A-156 of the construction; and Developer shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by Agency in connection with such matters is solely for the protection of Agency and that neither Developer nor any third party is entitled to rely on it; (b) Notwithstanding any other provision of any Loan Document: (i) the Agency is not a partner, joint venture, alter -ego, manager, controlling person or other business associate or participant of any kind of Developer and Agency does not intend to ever assume any such status; (ii) Agency's activities in connection with the Loan shall not be "outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and Agency does not intend to ever assume any responsibility to any person for the quality or safety of the Property; and (iii) Agency shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; (c) Agency shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard thereon; and, (d) By accepting or approving anything required to be performed or given to Agency Linder the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, Agency shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by Agency to anyone. 18.2 Indemnity. Developer shall defend (by counsel reasonably satisfactory to Agency), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the malting of the Loan(s); (iii) a claim, demand or cause of action that any person has or asserts against Developer; (iv) any act or omission of Developer, any contractor, subcontractor or material supplier, engineer, architect or other person with respect to the Property; or (vi) the ownership, occupancy or use of the Property. Notwithstanding the foregoing, Developer shall not be obligated to indemnify Agency with respect to the consequences of any act of gross negligence or willful misconduct of Agency. Developer's obligations under this Section shall survive the cancellation of the Agency Promissory Note, release and reconveyance of the Agency Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. 18.2.1 Notwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result as the repayment of principal and/or interest under the Loan. 80A-157 18.3 Reimbursement of Agency. Developer shall reimburse Agency immediately upon written demand for all costs reasonably incurred by Agency (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of Agency) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which Agency is indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty (20) days after Agency gives written demand to Developer and shall be secured by the Agency Deed of Trust. Such reimbursement obligations shall survive the cancellation of the Loan Note, release and reconveyance of the Agency Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1 Policies Required. While any obligation of Developer under the Loan Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the Agency, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: (a) worker's compensation insurance and any other insurance required by law in connection with the construction; (b) prior to commencement and following completion of the construction, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (e) upon commencement of the construction and at all times prior to completion of the construction, builder's risk -all risk insurance covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (d) public liability insurance in amounts reasonably required by Agency from time to time, and in no event less than $1,000,000 for "single occurrence;" (e) property damage insurance in amounts reasonably required by the Agency from time to time, and in no event less than $1,000,000; and (f) any other insurance reasonably required by Agency which is available at commercially reasonable rates. 80A-158 All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to Agency. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form and substance satisfactory to Agency, showing the Agency as encumbrance. The Agency shall be named as an additional insured in the policies required under subparagraphs (d) and (e). Certificates of insurance for the above policies (and/or original policies, if required by Agency) shall be primary and delivered within ten (10) days after demand therefore, and prior to start of any construction work All policies insuring against damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of co- insurance. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to Agency evidence of renewal or replacement of such policy reasonably satisfactory to the City Attorney. 19.2 City Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section so long as such modifications are commercially reasonable for an affordable housing development such as the Project. 19.3 Claims and Proceedings. Developer shall give Agency immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi -public use of any portion of the Property (collectively, "Condemnation"), and shall provide Agency with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by Agency in connection therewith to protect the interests of Developer and/or Agency, and Agency shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 19.4 Delivery of Proceeds to Agency. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the Agency immediately upon receipt. 19.5 Application of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions") within ninety (90) days (unless extended by mutual agreement of Developer and Agency) following the occurrence of the receipt of the Proceeds: (a) Developer shall demonstrate to Agency's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b) and any undisbursed loan and tax credit proceeds available to the Developer) will be adequate to repair the Improvements and to restore the fair market value 80A-159 of the Property, within a time period reasonably determined by Agency, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to Agency of (i) plans and specifications reasonably satisfactory to Agency, and (ii) a construction contract in form and content, and with a contractor, reasonably satisfactory to Agency. (b) To the extent that the Proceeds (together with all undisbursed Loan proceeds and any other financing proceeds available to the Developer) are insufficient to accomplish the restoration required above, Developer shall deliver to Agency funds (the "Shortfall Funds") in the amount of such shortfall, which funds shall be assigned to Agency as security for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. (c) Developer shall execute such documents as Agency reasonably requires to evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. (d) No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by Agency and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall either be paid to Developer or applied by Agency against any obligations to Agency that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 19.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within one hundred eighty (180) days (unless extended pursuant to Section 19.5) following the date Proceeds are received, the Proceeds shall be applied by Agency against any obligations to Agency that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by Agency in its sole and absolute discretion. 19.8 Restoration. Nothing in this Section 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 19.9 Condemnation; Treatment of Compensation. Subject to any superior rights of Senior Lender, Developer hereby assigns to the Agency, as security for all obligations to Agency secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation"). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to Agency immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of Agency, renders or is likely to render the Property not economically viable or 80A-160 if, in Agency's reasonable judgment Developer's security is otherwise impaired, Agency may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as Agency may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to Agency shall be paid to Developer or Developer's assignee. Agency shall have no obligation to take any action in connection with any actual or threatened condemnation or other proceeding. 19.9.1 Notwithstanding the foregoing, as long as the value of Agency's liens are not impaired, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 19.9.2 Notwithstanding the foregoing, during the tax credit compliance period for the Project, as determined under Section 42 of the Internal Revenue Code, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 19.10 Waiver of Subrogation. Developer hereby waives all rights to recover against the Agency (or any officer, employee, agent or representative of Agency) for any loss incurred by Developer from any cause insured against or required by any Loan Document, to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 20. DEFAULTS AND REMEDIES 20.1 Events of Default. The occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer: (a) Developer fails to make any payment of principal or interest under the Agency Promissory Note when due, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) Developer fails to perform any other obligation for the payment of money under any Loan Document, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such obligation was not performed when due; (c) Developer fails to perform any obligation (other than the obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such failure is not cured within thirty (30) days after Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30) -day period, such failure shall not be an Event of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to 80A-161 cure, and thereafter diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure to completion; (d) Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; (e) The Property is materially damaged or destroyed by fire or other casualty unless Developer fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within one hundred twenty (120) days (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; (f) Work on the construction ceases for thirty (30) consecutive days for any reason (other than governmental orders, decrees or regulations, acts of God or any other deity, strikes or other causes beyond Developer's reasonable control); (g) Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and/or occupying the improvements and such injunction or prohibition continues unstayed for sixty (60) days or more for any reason; (h) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the City Project Manager's prior written consent; (i) Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Developer applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Developer and the appointment continues undischarged or unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, construction or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or 0) (i) any of the Senior Loan documents is revoked or terminated, in whole or in part and for any reason (except due to repayment of such loans), without the City Project Manager's prior written consent, or (ii) Developer defaults or otherwise fails to perform any of its duties or obligations under or in connection with any of the Senior Loan documents, subject to all applicable notice and cure periods, or (iii) any of the Senior Loan documents is amended, supplemented or otherwise modified without Agency's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, Agency hereby agrees that any 80A-162 cure of any default made or tendered by Developer's Limited Partner shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer. 20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, Agency may, at its option and in its absolute discretion, do any or all of the following: (a) By written notice to Developer, declare the principal of all amounts owing under the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 (e) shall automatically, without notice or other action on Agency's part, cause all such amounts to be immediately due and payable; (b) In its own right or by a court-appointed receiver, take possession of the Property, enter into contracts for and otherwise proceed with the completion of the construction by expenditure of its own funds; (c) Exercise any of its rights under the Loan Documents and any rights provided by law, including, without limitation, the right to seek specific performance and the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as Agency elects in its sole and absolute discretion; and, (d) Suspend or terminate the award of Agency funds if Developer fails to comply with any term of such award. 20.3 Cumulative Remedies: No Waiver. Agency's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by Agency of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the Agency in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by Agency to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. Agency's consent to or approval of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary Agency's consent to or approval of any subsequent act. The Agency's acceptance of the late performance of any obligation shall not constitute a waiver by Agency of the right to require prompt performance of all further obligations; Agency's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and Agency's acceptance of any partial performance shall not constitute a waiver by Agency of any rights. 80A-163 21. MISCELLANEOUS 21.1 Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of Agency to Developer, or any other claim by developer against Agency, in connection with the Loan or otherwise, Developer hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Developer's obligations under the Loan Documents, or (b) to claim that the existence of any such outstanding obligation, liability or claim excuses the nonperformance by Developer of any of its obligations under the Loan Documents. 21.2 Notices. All notices, demands, approvals and other communications provided for in the Loan Documents shall be in writing and be delivered to the appropriate party by personal service or U.S. mail at its address as follows: If to Developer: AMCAL 1440 Santa Ana Fund, L.P. c/o AMCAL Multi -Housing, hie. 2082 Michelson Drive, Suite 306 Irvine, CA 92612 Attention: Mario Turner Copy to: AMCAL Multi -Housing, Inc. 30141 Agoura Road, Suite 100 Agoura Hills, CA 91301 Attention: General Counsel Copy to Limited Partner If to Agency: Housing Authority of the City of Santa Ana Executive Director 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 With a copy to: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non -receipt of any notice as the result of a change of address 80A-164 of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the Loan(s) described herein and have been or will be relied on by Agency notwithstanding any investigation made by either party. 21.4 No Third Parties Benefited. This Agreement is made for the purpose of setting forth rights and obligations of Developer and the Agency, and no other person shall have any rights hereunder or by reason hereof. 21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Developer and Agency and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Developer shall not assign any of its rights or obligations under any Loan Document without the prior written consent of Agency, which consent may be withheld in Agency's sole and absolute discretion. Any such assignment without such consent shall, at Agency's option, be void. 21.6 Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the Agency and Developer with respect to the Loan and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 21.7 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as Agency may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Developer also waives any objection regarding personal or in rem jurisdiction or venue. 21.8 Severability of Provisions. No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable. 21.9 Headings. Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents. 21.10 Conflicts. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, this Agreement, unless otherwise expressly provided, shall prevail; provided however that, with respect to any matter 80A-165 addressed in both such documents, the fact that one document provides for greater, lesser or different rights or obligations than the other shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed. 21.11 Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 21.12 Conflict of Interest. No member, official or employee of the Agency shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 21.13 Warranty Against Payment of Consideration. Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 21.14 [RESERVED] 21.15 Plans and Data. Where Developer does not proceed with the work and construction of the Project, and when this Agreement is terminated with respect thereto for any reason, Developer shall deliver to Agency any and all plans and data concerning the Property, and Agency or any person or entity designated by Agency shall have the right to use such plans and data without compensation to Developer. Such right of Agency shall be subject to any right of the preparer of the plans to their use. 21.16 Authority to Enter Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the Agency fully, including reasonable costs and attorney's fees, for any injuries or damages to Agency in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 21.17 Transfer of Developer Limited Partner's Interest. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, no consent shall be required of the Agency (and it shall not be deemed a default or an Event of Default under any of the Loan Documents), in connection with the transfer and/or the assignment by the Developer's limited partner of its interest in the Developer to an entity controlled or managed by an entity which is related to or under common control with the Developer's limited partner. 21.18 Removal of Developer's General Partner. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, the removal and/or replacement of a General Partner for cause in accordance with the Partnership Agreement shall not require the consent of the Agency and shall not shall not constitute a default or an Event of Default under this Agreement or the Loan Documents or accelerate the maturity of the Agency Loan. If the Developer's limited partner exercises its right to remove a General Partner, Agency will not unreasonably withhold its consent to the substitute general partner; provided however, the consent of either the Agency shall not be required if the substitute general partner is an affiliate of the Developer's limited partner. The substitute general 80A-166 partner shall assume all of the rights and obligations of the removed general partner hereunder. 80A-167 IN WITNESS WHEREOF, the patties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: HOUSING AUTHORITY OF THE CITY OF SANTA ANA ACTING AS THE HOUSING SUCCESSOR AGENCY Maria D. Huizar Gerardo Mouct Clerk of the Council Acting City Manager APPROVED AS TO FORM Sonia R. Carvalho City Affo)ney 0 10 RECOMMENDED FOR APPROVAL Robert C. Cortez Deputy City Manager (Signatures continue on folloMng page) DEVELOPER: AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership By: AMCAL 1440 Santa Ana Fund, LP, a California limited partnership in 80A-169 EXHIBITS A. Legal Description B. Affordability Restrictions on Transfer of Property C. Agency Deed of Trust D. Agency Promissory Note E. Project Budget F. Scope of Work / Schedule of Performance G. Form of Residual Receipts Report H. Partnership Agreement 80A-170 Exhibit Ae. Legal Description 80A-171 EXHIBIT "A" Legal Description All that certain real property situated in the County of Orange, State of California, described as follows Parcel 1: The Easterly 112.51 feet of the Westerly 437.51 feet of that portion of land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the Final Decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B" Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the center lines of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06'40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89° 08'20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 00 06'48" West 398.34 feet to the point of beginning. Excepting therefrom, that portion of the North 71.00 feet as described in the Deed to the City of Santa Ana, recorded April 15, 1960 in Book 5196. Page 381 of Official Records. Parcel 2 A non-exclusive easement for ingress and egress over the South 25 feet of the Westerly 325 feet of that portion of the land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 'feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 00 06'40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 890 08'20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 00 06'48" West 398.34 feet to the point of beginning. Parcel 3: The Westerly 175.00 feet of the Easterly 375.00 feet of that portion of the land allotted to N. 0. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06'40" East 397.90 feet to the Southeast comer of said land of Croddy Corporation; Thence South 89° 08'20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06'48" West 398.34 feet to the point of beginning, 80A-172 Excepting therefrom, the South 21 feet of the North 71 feet thereof Parcel 4: A non-exclusive easement for ingress and egress over the South 25 feet of that portion of the land allotted to N. O. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Paee 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest comer of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 00 06'40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89° 08' 20" West 812,54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06'48" West 398.34 feet to the point of beginning. Excepting therefrom, the Easterly 375.00 feet. Parcel 5: A non-exclusive easement for ingress and egress, for sewer lines, public utilities and drainage and the maintenance of these items over the South 25 feet of the following described land: The Westerly 437 feet of that portion of the land allotted to N. O. Stafford and C. Tustin, in the City of Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County Recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast comer of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06'40" East 397.90 feet to the Southeast comer of said land of Croddy Corporation; Thence South 89° 08'20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 00 06'48" West 39834 feet to the point of beginning. Assessor's Parcel Number: 011.154-43 80A-173 Exhibit Be. Affordability Restrictions on iii��ir I 80A-174 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Housing Division Manager AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY {Address: 1440 East First Street, Santa Ana, California) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership ("Developer") and the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic ("Agency"). RECITALS: A. The Agency is authorized by the Community Redevelopment Law of the State of California (Health and Safety Code section 33000, et seq.) ("CRL") to expend funds to increase the supply of very low and low income housing available at affordable housing costs. In part to further this goal, the Agency has created the Merged Project Areas, within the City (the "Project Area"), and adopted a Redevelopment Plan for the redevelopment of the Project Area. In accordance with Section 33334.2, et seq., of the CRL, the Agency sets aside a portion of the tax increment revenues it receives from the Merged 'Project Area in a separate low and moderate housing fund, which the Agency uses for the construction, preservation, and rehabilitation of affordable housing for low income households. B. Developer requested financial assistance in connection with the proposed development of a sixty-nine (69) unit affordable workforce housing complex ("Project") to be located at 1440 East First Street, Santa Ana, California, and legally described within Exhibit A attached hereto and incorporated herein ("Property"). The residential units will be located within six (6) buildings. The rental units (less one manager's unit) are 100% affordable to family households earning between 30% and 60% of the Area Median Income ("AMI"). The unit mix currently consists of six (6) four-bedroom units, twenty-eight (28) three-bedroom units, and thirty-five (35) two-bedroom units (one being a manager's unit). Eight (8) of the units will be assisted by the Santa Ana Housing Authority's Project -Based Voucher Program. On-site amenities will include a community room and amenity space including tot lots/play areas for children, outdoor seating, BBQ's, a flex play space and planters. The community room will be 80A-175 incorporated into the development, providing a computer laboratory, kitchen, activity room for resident activities, and office space for property management and social services staff. Developer will engage a qualified non-profit organization approved by the City (of which LifeSTEPS is hereby approved by the City) to provide free on-site social services to Project tenants. Services will be provided in the form of classes and workshops with the subject matter tailored by a social service coordinator to the specific needs of the community. C. The City of Santa Ana ("City") and the Housing Authority of the City of Santa Ana ("Housing Authority") reviewed Developer's request for assistance and at the City Council/Housing Authority meeting on December 20, 2016, the Housing Authority Board authorized and approved issuance of a conditional, pre -commitment letter evidencing the preliminary award of $6,195,000 of funds to the Project ("Agency Loan"), to be funded exclusively from the Low and Moderate Income Housing Asset Fund (the "LMIHAF") held by the Agency. D. The amount of the Agency Loan was determined based upon the City and Agency's review of the Developer's request for the receipt of the Agency Loan and the development proforma and projected cash flows for the Project submitted by the Developer to the City/Agency as of March 18, 2016 ("Proforma"). The Housing Authority's Executive Director has authority to approve revised development proformas and projected cash flows for the Project; provided, however, that the Agency Loan is not materially increased or extended. E. In furtherance of the CRL and the Redevelopment Plan, Developer has applied to the Agency for a loan with which to: 1. Provide deeper affordability and construct the improvements to the Property, and 2. Thereafter to maintain, operate and professionally manage the Project as decent, safe, sanitary and affordable rental housing. F. The Agency, on certain terms and conditions, desires to make such Agency Loan to Developer in order to make possible the construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. G. If there is any inconsistency between Federal, State, and local guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. H. The Agency Loan Agreement, Agency Deed of Trust, and Agency Promissory Note, dated concurrently herewith (collectively the "Agency Loan Agreements") are entered into for the purpose of providing for affordable very low income residential rental units in the City of Santa Ana pursuant to the Agency Funds regulations and guidance. NOW, THEREFORE, AGENCY AND OWNER COVENANT AND AGREE AS FOLLOWS: 1. Definitions 80A-176 "Affordable Housing" means the total housing costs paid by a qualifying household, which shall not exceed the fraction of gross income specified, as follows, in accordance with Sections 50052.5 and 50053 of the Health & Safety Code: Very Low -Income Households. Thirty (30) percent of the income of a household earning fifty (50) percent of the Orange County median income adjusted for family size appropriate for the unit. Low -Income Households. Thirty (30) percent of the income of a household earning seventy (70) percent of the Orange County median income for for -sale units, and thirty (30) percent of the income of a household earning sixty (60) percent of the Orange County median income for rental units, adjusted in either case for family size appropriate for the unit. In the event of a conflict between the fractions specified in this definition and those found in Sections 50052.5 and 50053 of the Health & Safety Code, the fractions specified by State law shall control. "Affordability Period" also referred to as "Term of Affordability", shall be fifty-five (55) years from date of issuance of Certificate of Completion. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the California Tax Credit Allocation Committee (TCAC). "Agency" means the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the CRL. The principal office of the Agency is located at 20 Civic Center Plaza, Santa Ana, California 92702. "Agency" shall also refer to the City where the context dictates, to the effect that City shall have all rights granted to the Agency hereunder. "Agency Deed of Trust" means the deed of bust encumbering the Property to be executed by Developer in order to secure the Agency Loan Note. "Agency Loan" means a loan in the original principal amount of up to six -million, one - hundred and ninety-five thousand dollars ($6,195,000) to be made to Developer by the Agency to be funded exclusively from the Low and Moderate Income Housing Asset Fund held by the Agency. "Agency Promissory Note" means that certain promissory note for Agency Loan funds in the original principal amount of $6,195,000 to be executed by Developer in favor of Agency to evidence the obligation of Developer to repay the Agency Loan through residual receipts as further described in the Agency Promissory Note. "Agreement" means this Affordability Restrictions on Transfer of Property between the Agency and the Owner affecting real property. 80A-177 "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Agency Funds. "Building Permit" means the building permit(s) issued by the City of Santa Ana and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City" shall also refer to the Agency where the context dictates, to the effect that the Agency shall have all the rights granted to the City hereunder. "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Agency Loan Agreement and Agency Deed of Trust recorded in the Official Records of the County. "Closing Statement" means the final statement of Owner's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Developer" or "Owner" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Event of Default" has the meaning set forth in Section 20.1. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. Hazardous Material shall not include (i) construction products, household cleaners and office materials 80A-178 of the type and quantity ordinarily used in the normal construction, operation and maintenance of properties similar to the Project or (ii) small amounts of household mold to the extent promptly remediated upon discovery. "HCD" means the California Department of Housing and Community Development (HCD) and any successors or assigns thereof. "Housing Authority" means the Housing Authority of the City of Santa Ana, a public body, corporate and politic. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting). "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non- recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 18.2. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Documents" or "Agency Loan Documents" means, collectively, this Agreement, the Agency Promissory Note, the Agency Deed of Trust, and the Affordability Restrictions on Transfer of Property, and any other agreement, docunnent, or instrument that the Agency reasonably requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by TCAC. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HCD. Also may be referred to interchangeably in the Agency Loan Documents as "Area Median Income" or "AMP'. 80A-179 "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the Agency Deed of Trust" means the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Owner pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached as Exhibit G to the Agency Loan Agreement, as modified from time to time in accordance with the Agency Loan Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 1440 East First Street in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Restricted Units" means the units restricted as affordable by the City Documents. "Scope of Work" means the detailed statement of the work to be performed by Owner on and to the Property pursuant to this Agreement, which is attached as Exhibit H to the Agency Loan Agreement. "Schedule of Performance" means the detailed schedule setting forth timeframes for certain tasks, which document is attached as Exhibit I to the Agency Loan Agreement. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender concurrent to the Agency Loan for payment of a portion of the acquisition and rehabilitation costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Senior Loan Deed of Trust" means the first deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. ,: 1 ffloe "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty-five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by TCAC. 2. Use of the Property. Owner covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property of any part thereof) that Owner, such successors, and assigns shall use the Property to provide affordable rental housing, for Very Low Income households, as provided in the Agency Loan Agreement and these Restrictions 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. a. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all rental units on the Property available to extremely -low, very low and low income households at rents affordable to such households for fifty- five (55) years from the effective date of the issuance of the Certificate of Completion. b. The Project shall consist of approximately sixty-nine (69) units of which there will be six (6) four-bedroom units, twenty-eight (28) three-bedroom units, and thirty-five (35) two-bedroom units (one being a manager's unit). The affordability mix for the Project is as follows: Bedroom Size 30% AMI 40% AMI 50% AMI 60% AMI Manager's Unit Total Two Bedroom 29 0 4 1 1 35 Three Bedroom 4 0 17 7 28 Four Bedroom 1 0 0 5 6 Totals 34 0 21 13 1 69 C. Affordable rents shall be calculated and governed as provided by the California Tax Credit Allocation Committee (TCAC). Rental increases shall be in conformance with federal and state law. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent tables published by TCAC. 80A-181 3.2 Rent Increases: A. On an annual basis, the Agency shall provide the Developer with the maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units for the Property) which shall correspond to the maximum rent increase allowed by TCAC. B. Developer, its successors and assigns shall not charge rents for the Restricted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by TCAC. The City Manager, or designee, shall notify Owner in writing of the adjusted allowable maximum incomes and rents as allowed by TCAC. C. In no event shall the rent charged to the tenant of a Restricted Unit be more than that amount of the rent as published by TCAC, as amended from time to time (currently $604 for a two-bedroom unit, $700 for a three-bedroom unit, and $780 for a four-bedroom unit). D. Utility allowances must be deducted from the Maximum Gross Monthly Rent. Utility allowances are deducted from rents using the following amounts set annually by the Housing Authority of the City of Santa Ana, provided, however, in lieu of the utility allowance published by the Housing Authority the Developer may elect to use the California Utility Allowance Calculator to the extent allowed by TCAC. 4. Miscellaneous Provisions: A. Owner shall adopt and include as part of its Management Plan (described in subsection G below), written tenant selection policies and criteria for the Units that meet the following requirements: (a) Are consistent with the purpose of providing housing for Extremely -Low, Very -Low and Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; (c) Reserved; (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the Agency; and (1) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, 80A-182 ethnic and gender groups in the housing market area to the units. Owner, the Agency shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re -renting of any Restricted Units. B. Owner, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a federally funded tenant -based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable tenant -based assistance document. C. Any lease of any of the Units must be for not less than one year, unless by mutual agreement between the tenant and the Owner. Should the tenant and Owner agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Owner. The lease may not contain any of the following provisions (in which references to "Owner" shall mean the Owner, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (e) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. D. Owner, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. 80A-183 E. Owner shall maintain the improvements on the Property in compliance with all applicable housing quality standards and state and local code requirements and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Owner shall also maintain in a healthy condition any landscaping planted on the Property. F. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. G. Not later than the closing for the construction loan for the Project, Owner shall submit to the City Project Manager a Management Plan in a form that is acceptable including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the City Project Manager not later than the time for the issuance of a certificate of occupancy for the Project. Owner shall manage the Restricted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the City Project Manager, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Owner shall submit the name and qualifications of the proposed Management Agent. The City Project Manager shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. (b) Management Agreement. Owner shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Owner and Management Agent. (c) Annual Budget and Projected Cash Flows. Prior to the issuance of a certificate of occupancy for the Project, and annually thereafter not later than one hundred fifty (150) days after the close of each calendar year thereafter, Owner shall submit a projected operating budget and cash flow to the City Project Manager. The budget and cash flow shall be in a form that is reasonably acceptable to the City Project Manager. (d) Tenant Selection Policies. Owner shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. H. If at any time the Agency determines that the units are not being managed or maintained in accordance with the approved Management Plan, Agency shall provide Owner with notice thereof which notice shall include a reasonable cure period not less than thirty (30) days. If the deficiencies have not been cured within the cure period provided in the Agency notice Owner FJ A shall change the management agent or the practices complained of, upon receipt of written notice from the City Manager. The City Manager may require Owner to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Owner without penalty, upon thirty (30) days prior written notice, at the direction of the City Manager. Within ten (10) days following a direction of the City Manager to replace the management agent, the Owner shall select another management agent or make other arrangements satisfactory to the City Manager or designee for continuing management of the units. I. The covenants established in these Restrictions and any amendments hereto approved by the Agency, and Owner shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency and their respective successors and assigns. These Restrictions shall remain in effect for fifty-five (55) years. In its discretion, the Agency may defer repayment of the Loan or the Agency may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Restricted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. J. Reserved. K. Records and Audits. a. Owner shall maintain the following general program records, and make them available for inspection by the Agency, the State or HUD: (1) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with NSP funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Owner's outreach programs to minority-owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (2) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the date on which Owner obtained ownership of the Property; (3) any other reports issued by other monitoring agencies. 80A-185 b. All records pertaining to each calendar year of Agency funds must be retained for the most recent five year period, except that for rental housing projects, records maybe retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates. Owner shall cooperate with the Agency to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The Agency, the State, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. C. If so directed by the Agency upon termination of the Loan Agreement, Owner shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the Agency, as depository. d. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the Agency on reasonable prior notice, for the purpose of examination or audit. e. The Agency shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Owner shall reasonably cooperate with Agency in performing such audit. f Owner shall permit the Agency to perform an Annual Physical Inspection of the Property with at least seven (7) days notice. Owner shall cooperate with this Inspection and shall take all steps necessary to quickly correct any code deficiencies identified during the Inspection. L. The Agency is the beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The Agency shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. M. The covenants and agreements contained herein shall run with the land and not be personal obligations of Owner. Upon the sale, conveyance or other transfer of the Property (a "Transfer") and the assumption of the obligations hereunder by a transferee, Owner's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. N. The Loan Agreement and all of its attachments shall be enforceable by the Agency in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the Agency Note and the Agency Deed of Trust provide a means of enforcement by the Agency if Owner is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land. FOOTITMOOT19 IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM Sonia R. Carvalho City Attorney By: Ryan O. Hodge Assistant City Attorney RECOMMENDED FOR APPROVAL Robert C. Cortez Deputy City Manager HOUSING AUTHORITY OF THE CITY OF SANTA ANA ACTING AS THE HOUSING SUCCESSOR AGENCY Gerardo Monet Acting City Manager (Signatures continue on following page) 80A-187 DEVELOPER: AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership FoorlyfflMougo Exhibit Co. Agency Deed of Trust FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Development Agency City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M-26) Santa Ana, California 92702 Attn: Housing Division Manager AGENCY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS AGENCY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this day of February, 2017, by between AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership (the "Trustor"), , a (the "Trustee"), and the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic (the 'Beneficiary"). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 1440 East First Street, Santa Ana, California (the "Property"); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this Agency Deed of Trust; provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain Agency Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreement is on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of this Trust, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and 80A-190 chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of six - million, one -hundred and ninety-five thousand dollars ($6,195,000) (the "Agency Promissory Note"); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Agreement. This Deed of Trust is executed and delivered, along with the Agency Promissory Note and the Agency Loan Agreement, to benefit the Property. A copy of said Agency Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement"). Trustor aclamowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or Agency Promissory Note secured by this Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the Agency Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan, but the Agency's Affordability Restrictions on Transfer of Property shall remain in first place except that the Agency's Affordability Restrictions on Transfer of Property shall be subordinated to Trustor's Senior Loan for acquisition. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Truster's covenants to make payments when due (subject to all applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed 80A-191 of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. hi the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. 80A-192 Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the Agency Promissory Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. hispection. The Beneficiary may make, or cause to be made, reasonable entries upon and 'inspections of the Security upon reasonable prior notice during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required render applicable law to be given in another manner, (a) any notice to Trustor provided for in this Agency Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 2082 Michelson Drive, Suite 306, Irvine, CA 92612, (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Division Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County. 16. Severability. In the event that any provision or clause of this Deed of Trust or the Agency Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the Agency Promissory Note which can be given effect without the conflicting provision, and to tris end the provisions of the Deed of Trust and the Agency Loan Note are declared to be severable. 80A-193 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the Agency Promissory Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non-existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include any transaction not considered a "transfer' under Section 16.2 of the Loan Agreement. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the Agency Promissory Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any cure of any default made or tendered by Truster's limited partner shall be deemed to be a cure by Trustor and shall be accepted or rejected on the same basis as if made or tendered by Trustor. 80A-194 The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Trustors Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the Agency Promissory Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Tmstor's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a parry unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Agency Promissory Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, Agency Promissory Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. 80A-195 (Signatures on Following Page) 7 80A-196 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership 0 In 80A-197 Exhibit Do. Agency Promissory Note HOUSING FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE HOUSING AUTHORITY OF THE CITY OF SANTA ANA (1440 East First Street, Santa Ana, California) $6,195,000.00 Principal Amount of Loan February , 2017 Santa Ana, California FOR VALUE RECEIVED, AMCAL 1440 Santa Ana Fund, L.P., a limited partnership ("Borrower"), hereby promises to pay to the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency, a public body, corporate and politic ("Agency"), or order, a principal amount not to exceed SIX -MILLION, ONE -HUNDRED AND NINETY-FIVE THOUSAND DOLLARS ($6,195,000) or so much thereof as may be advanced by the Agency to the Borrower, due and payable with 3% simple interest by residual receipts over the fifty-five (55) year term, pursuant to the Agency Loan Agreement (said "Agreement') between Borrower and the Agency dated concurrently herewith, which is incorporated herein by this reference. The Note Amount shall bear simple interest at the rate of 3% simple interest per annum, from the date of issuance of the Certificate of Occupancy. This loan is made pursuant to the "Housing Opportunity Ordinance In -Lieu Fee Program" or "In -Lieu Fees" with money funded through the Program as "Agency Housing Funds". Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to Agency hereunder is subject to the terms of said Agreement, the Affordability Restrictions on Transfer of Property, Agency Deed of Trust and this Note. Said documents are public records on file in the offices of the Agency, and the provisions of said documents are incorporated herein by this reference. This Note, said Agreement, the Affordability Restrictions on Transfer of Property, and the Agency Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the Agency. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Agreement. This Note evidences the obligation of Borrower to the Agency for the repayment of the Agency Loan of Agency Funds attributable to the acquisition, development, adaptive reuse and construction of the Property, and related soft costs. This Note is payable at the principal office of the City of Santa Ana — Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Attn: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 80A-199 2. Definitions. For the purpose of calculating the payments to be made by Borrower to Agency pursuant to this Note, the following terms shall have the following respective meanings: "Agency Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. "Agency Funds" shall mean the money provided by the Housing Successor Agency for the construction of the rental units hereunder. "Agency Deed of Trust" shall mean the Agency Deed of Trust in favor of the Agency, securing the Agency Loan, substantially in the form attached to the Agreement as Exhibit D, which is incorporated herein by this reference. "Agency Loan" shall mean the loan evidenced by this Note repayable to the Agency in accordance with the terms of this Note and secured by the Agency Deed of Trust. "Agency's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50%) of the total Residual Receipts from the Property as further described in Section 5 hereof. "Agreement" means the Agency Loan Agreement between the Agency and the Developer, and any attachments or amendments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Agency Housing Program, and the Agency Funds. "Area Median Income" means the median income figures for Orange County as published by the California Department of Housing and Community Development (HCD). Also may be referred to as "AMI" herein. "Borrower" means AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Closing Costs" shall mean: (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. 80A-200 (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and/or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal and/or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "Housing Successor Agency Loan" means the loan made by the Housing Authority of the City of Santa Ana, acting as the Housing Successor Agency to the Developer in the original principal amount of $6,195,000. "Operating Expenses" shall mean the sum of the following: (i) payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) a property management fee not to exceed 8% of gross rents; (iii) Owner Administration Fee not to exceed 5% of gross rents; (iv) deposits into required reserves; (v) any deferred developer fee; (vi) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the Agency; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. 3 80A-201 (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms -length transactions for similar services in Orange County, California area. (vii) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement"). "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. "Property" shall mean that property located at 1440 East First Street, Santa Ana, California. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and/or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan, except for the payoff of the conventional lender's acquisition loan for the Property.. "Refinancing Proceeds" shall be disbursed as set forth in Section 6 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses from the same building, applicable to each such year to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty-five percent (35%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. Notwithstanding anything to the contrary contained herein, a "Sale" shall not include any transaction not considered a "transfer' under Section 13. 4 80A-202 "Senior Loan" shall mean any senior loan made to Borrower, for payment of Acquisition and/or Rehabilitation Costs, and shall include any subsequent loan that refinances said Senior Loan. "Term" the term for repayment of this Note shall mean fifty-five (55) years from the date of recording of the Deed of Trust securing the Note. "Term of Affordability" the term of affordability shall be fifty-five (55) years. "very Low Income" means an adjusted income which does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HCD. 3. Loan Repayment. Borrower shall make payments to the Agency as provided in Sections 5 (Residual Receipts), 6 (Refinancing Proceeds), 7 (Sale Proceeds) and 9 (Accelerated Loan Repayment) of the Agreement. 4. Operatin¢ Capital Improvement Loan. If the replacement reserve account ("reserves") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to payment of said loan. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repayment/ Residual Receipts. a. Commencing on the date one hundred fifty (150) days after the close of the initial Calendar Year following the issuance of the Certificate of Completion and on or before the 150t' day of each Calendar Year thereafter the Borrower shall thereafter make a loan payment to the Agency annually, in the amount of the lesser of the outstanding balance due under this Note or the Agency's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the Issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter, the Borrower shall submit to the Agency an audited financial statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make an Agency Loan payment then due. c. Except as otherwise provided, the Borrower shall pay to the Agency the Agency's Percentage of the Residual Receipts as payment of principal. At least fifty percent (50%) of the Residual Receipts shall remain with the Borrower, with all Residual Receipts remaining with Borrower to the extent the Agency Loan has been fully repaid. 80A-203 d. Borrower shall retain fifty percent of the Residual Receipts. The other percent (50%), the Agency's Percentage of the Residual Receipts, shall be divided with thirty percent (30%) to be applied to the Agency Loan, and seventy percent (70%) to be applied to the payment of the Housing Successor Agency Loan. As Borrower repays its loans, the payment percentage applied to the remaining loans shall increase. e. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the principal balance of the loan. 6. Loan Repayment from Refinancing Proceeds. The Borrower shall make a loan payment to the Agency from every Refinancing that occurs during the term of this Note (other than refinancing of the conventional lender acquisition and/or construction loan) not to exceed the outstanding balance of principal on this Note, to the extent of the Agency's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the Agency the Agency's Percentage of the Refinancing Proceeds of which Agency Percentage shall be used thirty percent (30%) to repay the Agency Loan, and seventy percent (70%) to repay the Housing Successor Agency Loan to the extent of the outstanding balance on this Note. At least fifty percent (50%) of the Refinancing proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the principal balance of the Loan. The Agency shall not be required to reconvey the lien of the Deed of Trust if Refinancing Proceeds are insufficient to repay the Loan in full. 7. Loan Repayment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on this Note subject to Section 14 herein, to the Agency from any Sale that occurs during the term of the Agency Loan, to the extent of the Agency's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next, the Borrower shall pay to the Agency the Agency's Percentage of the Refinancing Proceeds of which Agency Percentage shall be used thirty percent (30%) to repay the Agency Loan, and seventy percent (70%) to repay the Housing Successor Agency Loan, and the amount necessary to pay any deferred developer fee in full, not to exceed the outstanding amount of principal due on this Note. At least fifty percent (50%) of the Sale Proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the principal balance of the Loan. The Agency shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. 6 80A-204 8. Accelerated Loan Payment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 13 hereof; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the Agency Loan, the Agency approves such sale and the purchaser assumes the balance of the Agency Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the Agency Loan, the Agency approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the Loan Documents or the Senior Loan Documents. c. Any default (subject to any applicable notice and cure provisions by Borrower as to any other loan or loans by Agency to Borrower with respect to the Property; or d. The date that is fifty five (55) years after the date of execution of this Note. On that date, the Agency agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Term of this Agency Note. 9. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at any time without penalty, however the Affordability Covenants and Restrictions still remain for the entire Affordability Period of fifty-five (55) years. 10. Lawful Monev. Principal is payable in lawful money of the United States of America. 11. Application of Payments; Late Charges. a. Any payments received by the Agency pursuant to the terms hereof shall be applied first to sums, other than principal, due the Agency pursuant to this Note, and the balance, if any, to the payment of principal. b. If any payment is not received by the Agency within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; then in addition to the remedies conferred upon the Agency pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4%) of the amount due and unpaid will be added to the delinquent amount to compensate the Agency for the expense of handling the delinquency 80A-205 and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the Agency hereunder or under any of the other Loan Documents, Borrower shall indemnify the Agency against, and shall pay the Agency on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of principal, fees, or other amounts payable to the Agency under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the Agency setting forth the basis for the determination of the amounts necessary to indemnify the Agency in respect of such expenses or direct loss, submitted to Borrower by the Agency, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to Agency. 12. Seeurity This Note is secured by the recorded Deed of Trust. 13. Acceleration by Reason of Transfer or Financing. a. In order to induce Agency to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of Agency (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), Agency shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. Agency may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of Agency. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation or limited liability company that is wholly owned by the Borrower or its affiliates and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of Agency (which consent Agency may grant or deny in its sole discretion), then the entire outstanding balance of the Agency Loan shall be repaid to the Agency at the time of each Refinancing or partial 8 80A-206 Refinancing. Additionally, a "Transfer" shall not include any transaction not considered a "transfer' under Section 16.2 of the Loan Agreement. 14. Event of Default. Subject to the provisions of Sections 23 hereof, the occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Covenants and Restrictions within thirty (30) days after written demand therefor by Agency (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after any applicable notice has been provided and the expiration of any applicable cure period therefore, if any, provided therein. 15. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, Agency may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and Agency may foreclose on the Deed of Trust. Agency shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4%). No delay or omission on the part of the Agency in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 16. Attorney Fees. If this Agency Promissory Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 9 80A-207 V. Severability. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 18. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 19. Non-recourse. The Agency Loan is a nonrecourse obligation of the Borrower. Neither Borrower, nor its partners nor any other party shall have any personal liability for repayment of the Agency Loan or for any other amounts under any of the documentation evidencing, securing or describing the Agency Loan. The sole recourse of Agency under this Note and the Deed of Trust for repayment of the Agency Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 20. Subordination. It is hereby expressly agreed and acknowledged by Borrower and Agency that the Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust. 21. Notice of Default. a. Subject to the applicable cure periods set forth in Section 14 and subject to the further provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. b. The Agency shall give written notice of default to the Borrower specifying the default complained of by the Agency. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. C. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the Agency to be reasonably necessary to correct the default). 10 ,:1 1: d. Any failures or delays by the Agency in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the Agency in asserting any of its rights and remedies shall not deprive the Agency of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder Agency shall give Borrower written notice of such default. Borrower shall have a period of fifteen (15 Business Days after such notice is received within which to cure the default prior to exercise of remedies by Agency under this Note and the Deed of Trust. f If a non -monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder, Agency shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the Agency under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by Agency. In no event shall Agency be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (18 0) days after the first notice of default is given. 22. Insurance and Condemnation. In the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Borrower shall have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the Agency Loan in balance and rebuild the Property in a manner that provides adequate security to Agency for repayment of the Agency Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) Agency shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the Agency Loan in a manner that provides adequate security for repayment of the remaining balance of the Agency Loan. 23. Force Maieure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; 11 80A-209 riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the Agency or any other public or governmental Agency or entity (except that any act or failure to act of Agency shall not excuse performance by Agency); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to rum from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the Agency and the Borrower. 24. Assignments. The Agency, and the assignee of the Agency, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 12 80A-210 This Agency Promissory Note is hereby agreed to and executed on the date first set forth above. AMCAL 1440 Santa Ana Fund, L.P., a California limited partnership In 0 13 80A-211 Exhibit Ee. Project 80A-212 80A-213 Exhibit Fee Scope of Work /Schedule of 80A-214 SCOPE OF DEVELOPMENT The development is a 69 -unit affordable rental apartment community that will serve family households. The property address of the subject site is 1440 East First Street in the City of Santa Ana. The development site consists of approximately 2.16 acres. The project will contribute to improving the neighborhood and will provide much needed affordable family housing to the community. The units are affordable to households earning between 30% and 60% Area Median Income (AMI). The unit mix includes thirty-four (34) 2 -bedroom, twenty-eight (28) 3 -bedroom, and six (6) 4 -bedroom units. Of the 69 total units, 68 will be reserved for affordable households and 1 unit will be an unrestricted Manager's Unit. The two, three, and four-bedroom unit offer contemporary living for residents including balconies/patios, personal storage space, modern kitchens and bathrooms. To provide the most convenient living environment for families, all kitchens have garbage disposals, dishwashers and other amenities. The appliances will be energy efficient models to further reduce costs for residents. The project will achieve a Leadership in Energy and Environmental Design (LEED) Silver designation. The building design is contemporary and will utilize high standards of construction and sustainable design. The buildings are three stories in height and oriented towards First Street with the primary building lobby located at the ground level. The residential units will be located within six buildings, each constructed as a Type V three story tuck -under design. A community laundry building is also provided at the ground level. The resident parking includes garages and surface parking spaces. On-site amenities include a community room, outdoor gardens and amenity space including tot lots/play areas for children; outdoor seating, BBQ, and planters. The community room will be incorporated into the development, providing a computer laboratory, kitchen, activity room for resident activities, and office space for property management and social services staff. The convenient location of the development will provide resident access to public transportation, parks, markets, a public school, medical clinic and retail outlets. 80A-215 Proposed Development Schedule: EVENT DATE Community Redevelopment and Housing Commission 3/28/2016 City Council 4/19/16 Site Acquired 8/30/2015 Begin Entitlements 8/3/2015 City Staff Approval of Entitlements 3/28/2016 9% Tax Credit Application 3/1/2017 9% Tax Credit Award 6/30/2017 Begin Construction Documents 7/1/2017 Construction Financing Secured 8/1/2017 Tax Credit Investor Secured 8/1/2017 Begin Construction/Building Permit Issued 11/1/2017 Construction Complete 5/1/2019 Leasing Process Begins 5/1/2019 Project Fully Leased 8/1/2019 80A-216 Exhibit Go. Form of Residual Receipts Mr, 1 80A-217 EXHIBIT G FORM OF RESIDUAL RECEIPTS REPORT Community Redevelopment Agency of the City of Santa Ana Residual Receipts Report for the Year Ending Date Prepared Please complete the following information and execute the certification at the bottom of this form. Annual Project Revenue Please report Annual Project Revenue for the year ending on the following lines: Rent Payments (including Section 8 tenant assistance payments, if any) (1) $ Interest Income (do not include interest income from replacement and operating reserves nor interest income on tenant security deposits) Additional Income (for example, vending machine income, tenant forfeited deposits, laundry income not paid to the residents' association) Total Annual Project Revenue (Add lines 1, 2, and 3) Operating Expenses Please report Operating Expenses incurred for the year ending on the following lines: Operating and Maintenance Expenses Utilities Property Management Expenses and On -Site Staff Payroll Administrative Expenses Property Taxes Insurance 80A-218 (2) (3) $ (4) (5) $ (6) $ (7) $ (8) $ (9) $ (10) $ Other Expenses Please list these expenses: Total Annual Operating Expenses for the Housing Project (12) (Add lines 5, 6, 7, 8, 9, 10, and 11) Net Operating Income (Subtract Line 12 from Line 4) (13) Do not include expense unrelated to the operation of the Rental Portion of the Project, such as depreciation, amortization, accrued principal and interest expense on deferred payment debt, or capital expenditures. Additional Cash Flow Pavments Obligated First Mortgage Debt Service Payments (as approved by the Agency and (14) other parties that may have such approval rights) and Obligated Secondary Subordinate Debt Service Payments (as approved by the Agency and other parties that may have such approval rights) Scheduled Deposits to Reserves (as approved by the Agency) (15) Additional Payment Obligations (such as partnership management fees, deferred (16) developer fees, or repayments on loans to partners, as approved by the Agency to have priority over Residual Receipt Payment to the Agency) Total Additional Cash Flow Payments (Add lines 14, 15, and 16) (17) Residual Receipts for Year Ending (Subtract LIne 17 from Line 13) (18) Percentage of Residual Receipts to be Paid to the Agency (as shown in the (19) Promissory Note by and between the Agency and Borrower dated Amount Payable to the Agency (Multiply Line 1.8 by Line 19) (20) The amount payable to the Agency listed on Line 20 is subject to payment according to the terms of the Promissory Note by and between the Agency and Borrower dated . If Line 20 is $0.00 or negative, you owe nothing to the Agency this year. If Line 20 is a positive number, remit check payable to and attach to this report. 80A-219 Exhibit Ho. Partnership Agreement 80A-220 NO PARTNERSHIP INTEREST REPRESENTED BY THIS AGREEMENT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER THE CALIFORNIA CORPORATE SECURITIES LAW OF 1968, AS AMENDED, IN RELIANCE UPON EXEMPTIONS FOR SALES NOT INVOLVING ANY PUBIC OFFERING AND UPON THE REPRESENTATION THAT SUCH PARTNERSHIP INTERESTS WILL NOT BE TRANSFERRED UNLESS AN OPINION OF COUNSEL IS GIVEN, SATISFACTORY TO THE GENERAL PARTNER AND ITS COUNSEL, THAT REGISTRATION IS NOT REQUIRED. LIMITED PARTNERSHIP AGREEMENT OF AMCAL 1440 Santa Ana Fund L P This Limited Partnership Agreement of AMCAL 1440 SAN'T'A ANA FUND, L.P. ("Agreement") is entered into as of September 1, 2015 between AMCAL Multi -Housing Two LLC, a California limited liability company, as general partner ("Administrative General Partner"), and the parties signing at the end of this Agreement, as limited partners ("Limited Partner" or "Limited Partners"), The Partners agree as follows: I. Formation. The Limited Partners and the General Partner hereby enter into a Limited Partnership ("Partnership") pursuant to the Uniform Limited Partnership Act of 2008, Corporations Code Section 15900 and following, ("the Act") and the rights and liabilities of the Partners shall be as provided under California Law, except as set forth below. 2. Name. The name of the Parmershiip is AMCAL 1440 SANTA ANA FUND, L.P., a California Limited Partnership. 3. Principal Place of Business. The principal place of business of the Partnership is 30141 Agoura Rd., Suite 100, Agoura Hills, CA 91301. 4. Purpose. The purpose of the Partnership shall be to purchase, hold, develop, manage, improve, lease, sell that certain real property, described on Exhibit 'B" ("Partnership Property") and all related activities. 5, Term, The Partnership shall begin when the Certificate of Limited Partnership is filed with the Secretary of State as required by the Act and shall continue until the first to occur of: (a) December 31, 2045 (b) dissolution by mutual agreement of the General and Limited Partners (c) termination as hereinafter provided, or (d) by operation of law, Initial [.P Agreement - Santa Ma 1 80A-221 6. Capital Contributions. 6.1. Initial Capital. 'The Administrative General Partner shall contribute administrative services and not money or other property to the Partnership, The initial capital contribution of the Limited Partners shall be the total amount shown on Exhibit "A" under the heading "Initial Contribution". The Administrative General Partner shall also hold Limited Partners' interests to the extent shown on Exhibit "A" hereto. 6.2, Additional Limited Partners. If all the Limited Partners do not respond to a call for additional funds when due or for additional funds pursuant to paragraph 6.8, the Administrative General Partner shall be authorized to admit additional Limited Partners. Such Limited Partners shall become parties hereto by executing such documents as the Administrative General Partner may require pursuant to which they agree to be bound by this Agreement. The admission of additional Limited Partners shall not cause a dissolution of the Partnership. 63. Capital Accounts. A "Capital Account" shall be maintained for each Partner. The Capital Account for each Partner shall be equal to such Partner's initial capital contribution increased by: (i) cash and the fair market value of any property subsequently contributed to the Partnership by such Partner (net of liabilities assumed or taken subject to by the Partnership, pursuant to the provisions of Section 752 of the Internal Revenue Code of 1986 "[1RC"]) and (ii) such Partner's allocable share of Partnership income and gains, including any tax-exempt income; and decreased by; (a) cash and the fair market value of property distributed to such Partner (net of liabilities assumed or taken subject to by such Partner pursuant to the provisions of IRC Section 752), (b) such Partner's allocable share of Partnership losses and (e) such Partner's allocable share of expenditures of the Partnership described in IRC Section 705(a)(2)(B); and, notwithstanding the above, further adjusted as required to comply with Treasury Regulations Sections 1.704-1(b)(2)(N), including without limitation the provisions of subparagraphs (d), (e), (g), 0), (m), (n) and (r) thereof. All allocations for purposes of this Paragraph 6,3 shall be determined in accordance with the provisions of Article 7 (entitled "Profits, Losses and Distributions"). Each Partner shall have a single Capital Account which shall reflect all interests that Partner. 6,4. Limited Liability. Although a Limited Partner is personally liable to the Partnership for payment of his capital contribution, no Limited Partner will be bound by, or personally liable for the expenses, liabilities, or obligations of the Partnership, except to the extent of the Limited Partner's contribution to the capital of the Partnership and his share of the Partnership's undistributed profits; however, to the extent required by law, any Limited Partner receiving a distribution in return of all or a portion of his capital contribution shall be liable to the Partnership for any sum returned, plus interest, necessary to discharge Partnership liabilities to creditors whose claims arose before such return and before an amended certificate of limited partnership was filed reflecting such return of capital. 6,5. Role of Limited Partner. Except as otherwise provided in this Agreement or by law no Limited Partner shall take part in or interfere in any manner with the conduct or Initial 1,9 AG.,AMOtlt - sant. Ana .9.1.159.1.15 80A-222 control of the business of the Partnership or have any right or authority to act for or on behalf of the Partnership. 6.6, Interest. Interest earned on Partnership funds shall inure to the benefit of the Partnership, and Limited Partners shall not receive interest on funds contributed by them, 6.7. Right to Withdraw Contribution. No partner shall have the right to withdraw or reduce his contribution to the capital of the Partnership except as a result of the dissolution of the Partnership or as otherwise permitted by the Act, and no partner shall have the right to demand or receive property other than cash in return for his contributions to the Partnership. 6,8. Failure to Make Additional Capital Contributions. If the Partnership has insufficient funds to pay the Partnership's obligations, the Administrative General Partner shall have the option of either advancing the necessary sums and thereafter being reimbursed from Partnership funds as they become available or levy a capital contribution assessment on all Partners in proportion to their respective partnership interests. If any such additional contributions are not received within 15 days after the Partners are notified of the election to assess, the additional capital would be raised by first giving the remaining partners the first right of refusal to buy the incremental funding of the partners who do not come up with the required sum. If this fails the, Administrative General Partner would attempt to get new partners to buy the incremental funding required. The new money contributed (hereinafter "New Money") will receive a 30% annual return and the New Money will be returned to the investor before previously contributed capital receives a return or is returned to partners. 6.9. Loans. Any sums in excess of the total capital contributions required by this Agreement, required to meet the costs of owning and operating the Partnership Property may be loaned to the Partnership by the Partners, either General or Limited, and may be repaid with interest not to exceed the legal maximum when the Partnership has funds available not required in the operation of the Partnership business. Any such loans shall not increase the lending Partner's interest in the Partnership. 7, Profits, Losses and Distributions. 7.1. Definitions. For purposes of this Agreement, the following capitalized terms are defined as follows: 7.1.1. "Distributable Cash" is all cash of the Partnership (including without limitation cash from the sale of any or all of the Partnership property) less (i) the amount necessary for payment of all costs, expenses, obligations and liabilities of the Partnership then due (including any then due advances to the Partnership by the Partners), and (ii) the amount deemed necessary by the Administrative General Partner, in the exercise of its reasonable discretion, to establish a reserve for the payment of foreseen or unforeseen costs, expenses, obligations or liabilities of the Partnership. Initial LV Agreement - Santa Ma 9.1 159.1,15 3 80A-223 The Partnership shall not make, or receive and retain, any distribution of assets or any income of any kind of the project except surplus cash, and except on the following conditions: (1) All distributions shall be made only as of and after the end of a semiannual or annual fiscal period; (2) No distribution shall be made from borrowed funds, prior to the completion of the project or when there is any default under this Agreement or under the note or mortgage; (3) Any distribution of any funds of the project, which the party receiving such funds is not entitled to retain hereunder, shall be held in trust separate and apart from any other funds; and (4) There shall have been compliance with all outstanding notices of requirements for proper maintenance of the project. 7.1.2. "Income", "gains", "losses", "deductions", and "credits" are the Partnership's income, gains, losses, deductions and credits, respectively, as finally determined for federal income tax purposes; provided, however, that in making the allocations of such items for purposes of capital account adjustments, the adjustments required by Treasury Regulations Section 1304-1(b)(2)(iv)(g) shall be taken into account. 7.1.3. The "Accounting Period" of the Partnership will be each period commencing on the first day following the last day of the immediately preceding Accounting Period (which for the Partnership's first fiscal year shall be deemed to be the date of the commencement of the Partnership) and ending on December 31 (which shall also be the Partnership's fiscal year end). 7.1.4 "Minimum Gain" shall mean the taxable gain (whether taxable as capital gain or as ordinary income), which would be recognized by the Partnership if the nonrecourse debt of the Partnership were foreclosed upon and the Partnership's property securing such debt were transferred to the creditor in satisfaction thereof, but only to the extent of the excess of (a) the outstanding principal balance of such nonrecourse debt plus any accrued but unpaid interest thereon (whether or not added to principal) to the extent permitted by law, over (b) the adjusted basis of such property. 7.1.5. "Invested Capital" shall be the amount of capital contributed or deemed contributed to the Partnership by the Limited Partners pursuant to Paragraph 6,1 (entitled "Initial Capital). l"it1a1 LP Agr*.ment - Banta Ma 9.1,159.1,15 4 80A-224 7.1.6. "Invested Capital Balance" shall be the amount of a Partner's Invested Capital, plus the amount of any additional capital contributed by such Partner and reduced by the amount of cash distributed to such Partner pursuant to any provision of Paragraph 7.10 (entitled "Distributions of Cash from Operations"), Paragraph 7.11 (entitled Distribution of Cash from Capital Event) and subparagraph 11.3.3. 7.2. Allocation of Losses. For all Accounting Periods on a cumulative basis, except as otherwise specifically provided in this Agreement (including without limitation the provisions of Paragraphs 7.5 [entitled "Minimum Gain"], 7.6 [entitled "Recourse Debt Loss Allocation"]), 7.8 [entitled "Qualified Income Offset"], 7.12 [entitled "Allocations for Contributed Property; IRC Section 754 Adjustments"] and 7.15 [entitled "Revaluation Adjustment"]) (collectively such Paragraphs 7,5, 7,6, 7.8, 7.12 and 7.15 allocations shall be referred to as the "Required Allocations"), all losses (including all expense items separately stated on the Partnership's tax return) of the Partnership shall be allocated to the Partners in proportion to their then Partnership's Interests as set forth on Exhibit "A". 7.3. Allocation of Profits. For each Accounting Period, except as otherwise specifically provided in this Agreement (including without limitation the provisions of Paragraphs 7.5 [entitled "Minimum Gain"], 7.7 [entitled "Allocation of Ordinary Income"], 7.8 [entitled "Qualified Income Offset"], 7.12 [entitled "Allocations for Contributed Property; IRC Section 754 Adjustments"] and 7,15 [entitled "Revaluation Adjustment"]), all profits and gains (collectively "profits") (including all income items separately stated on the Partnership's tax return) of the Partnership shall be allocated to the Partners as follows: 7.3.1. First, if profits arise from the sale or other disposition of property with respect to which an investment tax credit was previously claimed, profits equal to the amount by which the basis of such property was reduced as a result of such claimed investment tax credit shall be allocated among the Partners in the same manner as such investment tax credit was previously allocated; 7.3.2. Second, to the same Partners, in the same amounts and in the same order of allocation as losses were theretofore allocated pursuant to Paragraph 7.2 (entitled "Allocation of Losses") and the Required Allocations, less the amount, if any, of profits previously allocated under this subparagraph 7.3.2 and/or the Required Allocations; and 73.3, Thereafter, to the Partners in proportion to their then Partnership Interests as set forth on Exhibit "A". 73.4. Notwithstanding anything to the contrary contained in this Agreement and except as provided in subparagraph 7.5.2 and 7,8. 1, in the event any profits from the sale or other disposition of all or any portion of the Partnership's assets constitute interest income (including "imputed interest"), such interest income, for each year, shall be allocated among the Partners pro rata based upon the amount of deferred principal proceeds (exclusive of "imputed interest") received by each of the Partners pursuant to Paragraph 7.10 (entitled "Distributions of xnitial ov Agteement - sam:a nna 9. 1.1s9.t.15 5 80A-225 Cash from Operations"), Paragraph 7.11 (entitled Distribution of Cash from Capital Events) and subparagraph 11.3.3. during each such year. 7.4. Allocation of Credits. All income tax credits of the Partnership shall be allocated in accordance with the ratio in which the profits of the Partnership are allocated (or would be allocated) among the Partners pursuant to Paragraph 7.3 (entitled "Allocation of Profits"), for the Partnership's taxable year during which the property which gives rise to the income tax credit is placed in service, regardless of whether the Partnership has a profit or a loss for such taxable year, However, if the ratio in which the Partners divide the profits of the Partnership changes during the taxable year of the Partnership in which such property is placed in service, the ratio effective for the date on which the property is placed in service shall apply. To the extent that any income tax credits allocated to the Partners are subject to recapture, such recapture income shall be allocated to the Partners to whom such tax credits were previously allocated. 7.5, Minimum Gain. Notwithstanding any other provision of this Agreement to the contrary and with a priority allocation pursuant to "treasury Regulations Section 1.764-1[b][4][iv][e]: 7.5.1. The Limited Partners shall not be allocated loss or deduction (or items thereof) attributable to nonrecourse debt which is secured by Partnership Property if such allocation would cause the sum of the deficit capital account balances of the Partner receiving such allocation (increased by the additional capital contributions such Partner is obligated to make pursuant to Paragraph 6.1 [entitled "Initial Capital"]) to exceed the Minimum Gain (determined at the end of the Partnership's taxable year to which such allocation relates) a Limited Partner's allocable share of the minimum gain shall be equal to the product of (a) the Minimum Gain, times (b) such Partner's then Partnership Interest. 7.5.2. The Partners with deficit Capital Account balances resulting in whole or in part from allocations of loss or deduction (or item thereof) attributable to nonrecourse debt which is secured by Partnership property shall, to the extent possible, be allocated income or gain (or item thereof) until the sum of such deficit Capital Account balances equals the Minimum Gain. 7.53. For purposes of computing the sum of the Partners' deficit Capital Account balances, if any property (including cash) is held by the Partnership at the end of the Partnership taxable year and there is a reasonable expectation that such property will be distributed to a Partner (other than in liquidation of the Partnership) prior to a corresponding increase in such Partner's Capital Account, such property shall be treated as having been distributed to such Partner on the last day of such taxable year, 7.5.4. The Minimum Gain shall be reduced by the cost of any capital improvements to be made to the subject property and the amount of any principal payments to be made with respect to the non recourse debts secured by such property to the extent there is a Initial 6P Aveement - Santa MA 9,1.159.1.15 80A-226 reasonable expectation that such improvements or payments would reduce the Minimum Gain below the sum of the deficit Capital Account balances. 7.6. Recourse Debt Loss Allocation. The allocation of loss or deduction (or items thereof) not attributable to nonrecourse debt which is secured by Partnership property shall not be made to a Partner if such Partner has a deficit Capital Account balance. Any such loss shall be allocated first among the Partners with positive Capital Account balances (and among them in proportion to their then positive Capital Account Balances) and then to the Administrative General Partner (and among them in proportion to their then respective Partnership Interests). Furthermore, losses attributable to nonrecourse liabilities of the Partnership where a Partner has economic risk of loss shall be allocated as required pursuant to Treasury Regulations Section 1.704-1(b)(4) (iv)(g). 7.7. Allocation of Ordinary Income. Notwithstanding anything to the contrary contained herein, any gain which is taxable as ordinary income as a result of depreciation or cost recovery taken by the Partnership shall be allocated among the Partners in the proportion that depreciation or cost recovery deductions were previously allocated among the Partners. 7.8. Qualified Income Offset. Notwithstanding anything to the contrary contained herein, allocations of profits, gain and losses to the Partners shall be made in a manner to comply with the provisions of Treasury Regulations Section 1,704-1(b)(2)(ii)(d). It is the Partners' intent that the following provisions, to the extent permitted by Treasury Regulations Section 1.704-1(b)(2)(ii)(d), shall not affect (a) losses or deductions (or items thereof) attributable to nonrecourse debt which is secured by Partnership property and/or (b) the priority allocation, if any, pursuant to subparagraph 7.5.2. In furtherance thereof, the following provisions shall apply to the extent required pursuant to the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d). 7.8,1. Losses shall not be allocated to any Partner if such allocation would, together with any decrease (and increase) of such Partner's Capital Account pursuant to the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6), cause or increase a deficit balance (in excess of any limited dollar amount of such deficit that such Partner is obligated to restore which shall include the amount of any Partner's share of minimum gain as provided by the provisions of Treasury Regulations Section 1.704-1[b][4][iv][fj) in such Partner's Capital Account as of the end of the Partnership's taxable year to which such allocation relates, A Partner's Capital Account adjusted as provided by this subparagraph 7.8.1 (including any obligation to restore any deficit) shall be referred to as the "Adjusted Capital Account". 7,82. Any losses not allocable to a Partner pursuant to the foregoing subparagraph shall be allocated to such Partners who have positive Adjusted Capital Accounts in proportion to their respective positive Adjusted Capital Accounts, with any losses in excess of such positive Adjusted Capital Accounts, being allocated to the Administrative General Partner (and among them in proportion to their then respective Partnership Interests, 7.8.3. If a Partner unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and/or (6), Snil;lax 1'e pyreemnnl - Nan Cd Ana 9.1.159,1.15 80A-227 then such Partner will be allocated items of income and gain in an amount and manner sufficient to eliminate any deficit balance in such Partner's Adjusted Capital Account as quickly as possible. 7.9. IRC Section 704 Modifications. If the General Partner receives the written opinion of tax counsel to the Partnership that the allocations of income, gain, loss, deduction or credit (or items thereof) would not fully conform to IRC Section 704(b), the Administrative General Partner is directed to make such allocations and/or amendment to this Agreement as advised by such tax counsel but only so long as none of the Partners would be materially adversely affected thereby, A Partner shall be deemed to be "materially adversely affected thereby" only if the effect of such allocation or amendment would be to cause such Partner to receive Distributable Cash in a manner inconsistent with the Partners' intentions as evidenced by this Agreement. It is the further intent of the Partners that the Administrative General Partner shall cause, to the extent permitted pursuant to the provisions of Treasury Regulations Section 1.704-1(b), items of income, gain, loss and deductions not required to be allocated in accordance with the Required Allocations to be allocated among the Partners to minimize the differences between the allocations provided by Paragraphs 7.2 (entitled "Allocation of Losses") and 7.3 (entitled "Allocation of Profits") and the allocations pursuant to the Required Allocations. Any allocation made pursuant to this Paragraph shall supersede any allocation otherwise provided in this Agreement and no approval of any Partner shall be required. The Partners agree to promptly execute any amendment to this Agreement pursuant to the provisions of this Paragraph and upon failure to do so, the Administrative General Partner, as the Limited Partners' attorney-in-fact, is authorized to execute any such amendment on behalf of the Limited Partners. 7.10. Distribution of Cash from Sales/Refinance. Except as required under paragraph 7.10.9 and pursuant to subparagraph 11,33, for each Accounting Period, Distributable Cash shall be distributed to the Partners as follows: 7.103, First, to payment of interest on partner's loans (if any); 7.10.2, Second, to payment of the principal of partner's loans (if any); 7,103. Third, to the return of "New Money" contributed pursuant to paragraph 6.8 (if any); 7.104. Next to payment of a 30% return on the New Money calculated from the date contributed until the date returned; 7,10.5. Next, to the Original Partners (and among them in proportion to their then respective Invested Capital Balances) until each Partner has received an amount of cash equal to the amount of his then Invested Capital Balance; 7.10.6. Next, to the Limited Partners until the Limited Partners have received an overall annualized return of 18% (including previous distributions from operations); Initial 4P Agreement - Santa Ma 9.1.159.1.15 80A-228 710.7 Next, to the Administrative General Partner until the Administrative General Partner receives a distribution of 10% of the sum of 7.10.6 and 7.103. 7.10.8 Thereafter, to the Limited and Administrative General Partner simultaneously in the ratio of 90/10 respectively. 7.10,9. Notwithstanding anything to the contrary contained in this Agreement, if any Distributable Cash constitutes interest income received in connection with the sale or other disposition of all or any portion of the Partnership's assets (including "imputed interest"), cash equal to such interest received by the Partnership shall be distributed, during each year, among the Partners in the same ratio as the principal amount of such installment sale is distributed to the Partners during such year and such distribution shall not be treated as a distribution of Distributable Cash pursuant to subparagraphs 7.103 and 7.10,4; 7.10,10, Distribution of Cash from Operations. All periodic Distributions from Operations will be made in accordance with the partners interests in the partnership per Exhibit A, Column 1 until the Limited Partners have received a 9% cash on cash return. The Partnership is authorized to execute a Note and Mortgage in order to secure a loan to be insured by the Secretary of Housing and Urban Development and to execute a Regulatory Agreement and other documents required by the Secretary in connection with such loan. Any incoming general partner shall, as a condition of receiving an interest in the Partnership, agree to be bound by the Note, Mortgage, and Regulatory Agreement and other documents required in connection with the PHA insured loan to the same extent and on the same terms as the other general partners. Upon any dissolution, no title or right to possession and control of the Project., and no right to collect the rents therefrom, shall pass to any person who is not bound by the Regulatory Agreement in a manner satisfactory to the Secretary. 7.10.11 Next, the Administrative General Partner will receive a distribution of 10% of the sum of 7.10.10 and 7.10.11, 7.10,121'hereafter, in the ratio of Exhibit A, Column 2. 7,11. Allocations for Contributed Property; IRC Section 754 Adjustments. If any Partner contributes any property to the Partnership, gain or loss with respect to such property on the sale or other taxable disposition of such property and the depreciation or cost recovery deductions for such property shall be allocated to the Partners as required in IRC Section 704 (c). To the extent required pursuant to Treasury Regulations Section 1.704-1 (b) (2) (iv) (m), the Partnership gain or loss, with respect to a Partner for whom the provisions of IRC Section 734 (b) or Section 743 (b) are applicable, shall be allocated in accordance with such provisions. Initial LP AgYeement - Santa And 9.1.159.1.15 9 80A-229 7.12. Identity of Distributees. Distributions shall be made only to persons who, according to the books and records of the Partnership, are the owners of record of partnership interest on a date to be determined by the Administrative General Partner. Neither the General Partners nor the Partnership shall incur any liability for making distributions in accordance with the preceding sentence, whether or not the General Partners has knowledge or notice of any transfer of ownership of any partnership interests. 7.13. Sharing Between Transferor and Transferee. If an interest in the Partnership is transferred, the income, gains, losses and deductions allocable to the interest transferred for the Accounting Period during which the transfer occurred will be allocated between the transferor and transferee of the interest in proportion to the time during the Accounting Period that the interest was owned by the transferor and transferee. Credits shall be allocated to the party who owned the interest at the time that the property giving rise to the credit was placed in service. Each transferee will be credited with the capital account of the transferee's transferor. If a transferor transfers less than all of the bansferor's interest in the Partnership, the capital account will be allocated in proportion to the fraction of the interest respectively transferred and retained. 7.14. Revaluation Adjustment, 7.14.1. The Administrative General Partner, upon advice of the Partnership's tax counsel that the Partnership is authorized pursuant to the provisions of Treasury Regulations Section 1.704-1(b) (2)(iv)(f) and that it is in the Partners' interest to do so, shall cause an increase or decrease in the Partners' Capital Accounts to reflect a revaluation of Partnership properly (including intangible assets such as goodwill) on the Partnership books. Any such revaluation shall be made strictly in compliance with the provisions of Treasury Regulations Section 1.704-1(b)(2) (iv)(f), including without limitation; (a) such adjustments shall (r) be based on the fair market value of Partnership property (as agreed to by the Partners (as hereinafter provided) and taking IRC Section 7701 [g] into account) on the date of adjustment and (ii) reflect the manner in which the unrealized income, gain, loss or deduction inherent in such property (that has not been previously reflected in the Capital Accounts) would be allocated among the Partners if there were a taxable disposition of such property for its fair market value at the date of adjustment; (b) the Capital Accounts shall be adjusted in accordance with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization gain or loss (all as computed for book purposes) with respect to such property following the date of adjustment; and (c) the Partners' shares of depreciation, depletion, amortization, gain or loss (all as computed for tax purposes), with respect to such property, shall be determined so as to take account of the variation between the adjusted tax basis and book value of such property in the same manner as under TRC Section 704(c) following the date of adjustment. 7.14.2. In accordance with the provisions of Treasury Regulations Section 1,704-1(b)(2)(iv)(g), the amount of book depreciation, depletion or amortization, for a period, with respect to any Partnership Property, is the amount that bears the same relationship to the book value Initial cP AgtOOMGnt - SeM[ Ana 9.1.159.1.15 10 80A-230 of such property as the depreciation (or cost recovery deduction), depletion or amortization computed for tax purposes for such property, for such period, bears to the adjusted tax basis of such property. 7.14.3. Por purposes of the foregoing, except as herein- after provided, the fair market value of any such Partnership Property shall be equal to the amount determined by the General Partner as set forth in a written notice delivered by the Administrative General Partner to the Limited Partners (the 'Notice"). Notwithstanding the foregoing, if those Limited Partners ("Dissenting Limited Partners") owning a majority of the Partnership Interests owned by all the Limited Partners object in writing to such fair market value within 10 days of delivery of the Notice, then the fair market value of such property shall be determined by the mutual agreement of the Dissenting limited Partners and the Administrative General Partner. If they cannot so agree, then the fair market value shall be determined by a qualified appraiser selected by the mutual agreement of the Administrative General Partner and the dissenting Limited Partners (and if they are unable to agree on such selection, the appraiser shall be selected by the American Arbitration Association or any successor organization thereto). All appraisal costs shall be paid by the Partnership. 8. Management. 8.1. Authority of General Partners. The Administrative General Partner and the Managing General Partner, if so named at this time, shall each have complete power of management of the Partnership and shall have authority to act on behalf of the Partnership in all Partnership matters including without limitation the power to execute notes, deeds of trust, contracts and leases; to assume direction of business operations and the Administrative General Partner and the Managing General Partner, if so named at this time, shall each have all rights, powers and authority generally conferred by law or necessary, advisable or consistent with accomplishing the purpose of the Partnership as set forth in Article 4 of this Agreement. During the operation phase the Managing General Partner shall be primarily responsible for the Partnership's operations. The Managing General Partner when entered into the Agreement shall perform other tasks and duties as may be required for non-profit general partners in order to maintain property tax abatement under the welfare exemption of the California Revenue and Tax Code and will perform all duties to qualify as a Managing General Partner under rule 140.1 adopted by the Board of Equalization each year. 82 Restrictions. The Administrative General Partner shall have no authority to (a) do any act which would make it impossible to carry on the ordinary business of the Partnership; (b) do any act in contravention of this Agreement; (c) possess Partnership Property or assign the right of the Partnership in any Partnership Property for other than a Partnership purpose; (d) obligate the Partnership as a surety or guarantor, endorser, or accommodation endorser for any other person or firm; or (e) make an assignment of the Partnership assets for the benefit of creditors. Initial N. Agreement. - Santa Ma 9.1.159.1.35 11 80A-231 8.3, Approval I7ights, The Limited Partners shall have the right, by vote of more than 50% of the Limited Partners' Interests, as shown on Exhibit "A", to approve the following matters affecting the basic structure of the Partnership: 8.3.1. The dissolution and winding up of the limited partnership. 8.3.2. The merger of the limited partnership or sale, exchange, lease, mortgage, pledge, or other transfer of, all or a substantial part of the assets of the limited partnership other than in the ordinary course of its business. 8.3.3. Incur indebtedness by the limited partnership other than in the ordinary course of business. 8.3.4. A change in the nature of the business. 8.3.5. Transactions in which the General Partners has an actual or potential conflict of interest with the limited partners or the partnership. 8.3.6. The removal of a general partner. 8.3.7. An election to continue the business of the Limited Partnership other than under the circumstances described in subparagraph 8.3.9 or 8.3.10. 8.3,8. The admission of a general partner other than under the circumstances described in subparagraph 8.3.9 or 8.3.10, subject to the unanimous vote requirement of paragraph 11.6. 8.3.9. The admission of a general partner or an election to continue the business of the limited partnership after a general partner ceases to be a general partner other than pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act where there is no remaining or surviving general partner, subject to the unanimous vote requirement of paragraph 11.6 83.10.The admission of a general partner or an election to continue the business of the limited partnership after the general partner ceases to be a General Partner pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act where there is no remaining or surviving general partner, subject to the unanimous vote requirement of paragraph 11.6 All other matters are within the discretion of the Administrative General Partner and the Limited Partners shall have no right to vote on those matters. 8.4. Meetings of Partners. Meetings of Partners shall be held at the principal place of business of the Partnership. Meetings shall be held only when called by either the Administrative General Partner or by Limited Partners representing more than 10% of the Limited anitinl LP Agreement - Gana Ana 9.1.159.1.15 12 80A-232 Partners' Interests, as shown on Exhibit A, Meeting notices and procedures shall be in conformity with California Corporations Code Section 15637. 8.5 Power of Attorney, The Limited Partners hereby irrevocably constitute and appoint the Administrative General Partner as his attorney to make, execute, acknowledge, and record any instrument which may be required by law to be filed by the Partnership, and any and all deeds, leases, deeds of trust, loan applications, promissory notes, loan agreements, assignments of lease, or other instruments or documents which the Administrative General Partner deems appropriate or necessary to carry out the purposes of this Agreement. The foregoing power of attorney shall survive the delivery of any assignment by a Limited Partner of the whole or any portion of his limited partner's interest, and any assignee of a Limited Partner hereby constitutes and appoints the Administrative General Partner as his attorney in the same manager and with the same force as if such assignee had executed this Agreement. 8.6. Other Activities. The Administrative General Partner shall devote so much of its time and attention to the Partnership business as it deems necessary or advisable under the circumstances. Any partner, General or Limited, may engage in or possess an interest in other partnerships and other business ventures of every nature and description and neither the Partnership nor the Partners shall have any right in such independent ventures or to the income or profits derived therefrom. Neither the General Partners or any Limited Partner shall be obligated to present any particular investment opportunity to the Partnership, even if the opportunity is of a character which, if presented to the Partnership, could be taken by the Partnership and the Partner receiving the opportunity shall have the right to take it for his or her own account or to recommend it to others, The fact that a Partner is employed, or is directly or indirectly interested in or connected with any firm or corporation employed by the Partnership to perform a service, shall not prohibit the General Partners from employing such person, farm or corporation, or from otherwise dealing with him or it. Neither the Partnership nor the Partners shall have any rights in or to any income or profits derived from such employment, nor shall such employment change the status of the partner as a Limited Partner hereunder. 8.7. Scope of Authority. Except as herein set forth, the Administrative General Partner shall have the right to cause the Partnership to enter into transactions with other persons, firms or entities with which the Administrative General Partner is affiliated, and to receive compensation, directly or indirectly through such affiliated corporation or other persons, for services rendered in connection with the Partnership from any source or transaction. 8.8. Limitation on Liability. The Partners acknowledge and agree that it is their intent that the General Partners shall not be liable, responsible or accountable in damages or otherwise, to any third person nor to the Partnership, nor to the other Partners for any loss, liability, obligations, penalties, actions, judgments, proceedings, damages, costs or expenses of any kind or nature whatsoever, including without limitation, all costs and expenses of defense, appeal and settlement, in any way relating to or arising out of or alleged to relate or arise out of any action or inaction on the part of the Partnership or the General Partners, except for the willful misconduct, gross negligence or reckless disregard by the General Partners of its duties. The Partnership shall Sn itial LP Agreement - Santa Ana 9,1..169.1.16 13 80A-233 indemnify the General Partners and hold it harmless from any of the foregoing, The General Partners is hereby authorized to withhold distributions if they determine in their sole discretion that such funds should be held as a reserve for indemnification, 8.9. Reimbursement of Expenses. 'The Administrative General Partner shall be entitled to reimbursement for all legal and auditing fees and expenses of agents and advisors, costs of insurance, and the cost of preparing the Partnership's tax returns. The Administrative General Partner shall also be entitled to reimbursement from the Partnership for direct and specific project expenses, overhead and administration costs, which shall include expenses connected with the distribution to and communication with Partners. The Administrative General Partner shall be entitled to a fee equal to 5% of the gross annual revenues as an asset/property management fee. In addition an affiliated company of the Administrative General Partner will act as a real estate broker and will receive a commission not to exceed 1% of the price on the purchase and on the sale of the property, No Limited Partner shall be entitled to any share of any such sums paid to the Administrative General Partner or its affiliate. 8. 10. Administrative and Development Fees. The General Partners shall not be entitled to any compensation for time, labor or overhead, except as specifically provided for in this Agreement. Transferability of Partners' Interest. 9.1, Permitted Transfers. The interest of a Partner may be sold or transferred only: (a) to an entity in which the transferring Partner owns a 51% or greater interest; (b) to the Partnership or to any Partner; (c) by testamentary disposition or by gift to a Partner's spouse or issue or to a trust fur such spouse or issue; (d) upon the sale of a Limited Partnership interest to a non partner, subject to the provisions of Paragraph 9.2, 9.2. Sale of Limited Partnership Interest. Except as set forth in Section 9.1.1, 9,2.2 or 9.23, the interest of a Partner in the Partnership only in its entirety, and on the following conditions. Any attempted transfer to any other person, including a transfer by operation of law, shall be void. 9.2,1. If any Partner ("Selling Partner") receives a bona fide offer to purchase all or any part of his Partnership interest, which offer the Selling Partner wishes to accept, the Selling Partner shall immediately notify the other Partners ("Remaining Partners") of the offer. The offer shall be communicated as provided in Paragraph 13 and shall include, the terms and conditions of the offer, the name of the person making the offer, the date on which the offer expires, and all other relevant information concerning the offer, Each Remaining Partner shall have 20 days after receipt of the offer, to match the price in the offer by giving notice in writing to the Administrative General Partner specifying how much of the Selling Partner's interest he wishes to purchase. Initial LP Agreement - San Ca Ana 3.1. 159.1, i5 12 80A-234 9.2.2. If the total of the offers of the Remaining Partners offering to purchase ("Accepting Partners") equals or exceeds the interest the Selling Partner offered to sell, the Accepting Partners shall become bound to purchase, and Selling Partner shall become bound to sell his interest to the Accepting Partners on the terms of the offer. The portion of the price payable by each of the Accepting Partners shall be the several, and not joint, obligation of each of the Accepting Partners, and shall be paid to the Selling Partner. If the total of the offers of the Accepting Partners equals the interest the Selling Partner offered to sell, each Accepting Partner shall purchase the proportion of the Selling Partner's interest specified in his notice. if the aggregate of the offers of the Accepting Partners exceeds the interest the Selling Partner offered to sell, each Accepting Partner shall purchase that proportion of the offered interest equal to such Accepting Partner's interest in the Partnership. No later than 7 days after expiration of the period for the Remaining Partners to exercise their rights under this article, the Administrative General Partner shall advise the Partners of the amount payable by each Accepting Partner, and the Administrative General Partner shall cause the interest of the Selling Partner to be eliminated and the interest of each of the Accepting Partners to be increased by the respective portion of the Selling Partner's interest purchased. 9.2.3. If the Remaining Partners do not offer to purchase all of the offered interest of Selling Partner within 20 days after receipt of the Proposed Offer, the Selling Partner may disregard all offers received from the Remaining Partners and may, within 30 days after the 20 -day period, dispose of his interest on the terms of the offer, provided that such sale shall not be at a lower price or upon terms more favorable to the buyer than those specified in the offer, If the Selling Partner can not sell his interest within said 30 day period, he may then only sell his interest after re -offering it to the other Partners as set forth above. 9.3. Substituted Limited Partner, No Limited Partner shall have the right to substitute an assignee for his capital contribution, and no transferee pursuant to paragraphs 9.1 and 9.2 of the whole or any portion of the Limited Partner's interest in the Partnership shall become a substituted Limited Partner unless: (a) such assignee delivers to the Administrative General Partner an agreement in writing to assume all of the obligations of Selling Partner under this Agreement; and (b) the Administrative General Partner consents in writing to such substitution; the Administrative General Partner may grant or withhold its consent in its sole and absolute discretion. 9,4. Election of General Partner. The Administrative General Partner may elect to treat and assignee who has not become a substituted limited partner as a substituted limited partner in the place of his assignor should the Administrative General Partner deem, in its sole discretion, that such treatment is in the best interests of the Partnership. 9.5, Non -Termination. The Partnership shall not be terminated by the death, insanity, bankruptcy, insolvency, dissolution, withdrawal, or expulsion of any Limited Partner, nor Initial Le ngreemeat - Santa "a 9.10.59.1.15 is 80A-235 by the assignment by any Limited Partner of his interest or by the admission of new Limited Partners. 9.6. Death or Incompetency of Limited Partner. Upon the death or legal incompetency of a Limited Partner his personal representative shall have all the rights of a limited partner for the purpose of settling or managing his estate. 9.7. Other Limited Partners. Upon the bankruptcy, insolvency, dissolution or other cessation of a corporate limited partner, the authorized representative of such entity shall have the rights of a limited partner to effect the orderly disposition of said Limited Partner's interest. 10. Financial Information. 10.1. Books of Account. The Administrative General Partner shall keep accurate books of account in which all matters relating to the Partnership, including all income, expenses, assets, and liabilities shall be entered. Said books shall be kept on a cash basis and shall be opened to examination by any partner at any time. 10.2. Accounting. A financial statement describing the condition of the partnership, as of the close of business on the last day of the calendar year and such additional information as may be needed by the partners to file their tax returns, shall be rendered to each partner within 90 days thereafter. Except for substantial errors brought to the attention of the Administrative General Partner within 30 days of its rendition, such accounting shall be final and conclusive as to all partners. 10.3. Tax Matters Partner, AMCAL Multi -Housing Two, LLC, shall be the "Tax Matters Partner" pursuant to IRC Section 6231 (a) (7). The Tax Matters Partner shall keep the other partners apprised of all proceedings regarding Partnership tax items. The Tax Matters Partner shall not enter into a settlement agreement with the Internal Revenue Service on behalf of any partner without that partner's consent. 10.4. Accounting Decisions. All decisions as to accounting matters, except as specifically provided to the contrary in this Agreement, will be made by the Partnership's accountants subject to the approval of the Administrative General Partner. 10.5. Federal Income Tax Elections. The Administrative General Partner shall cause the Partnership to make an election (or consent) to any such election by a Partner) pursuant to any of TRC Sections 732(d) and/or 754 (or corresponding provisions of succeeding law or state law), as may be determined by the Administrative General Partner in the Administrative General Partner's reasonable discretion, except to the extent otherwise determined by this Agreement. 11. Dissolution. InAial LP Agreement - San Ca Ma 9.1,159. 1. 1r 16 80A-236 I 1.1. Mutual Agreement. The Partnership shall be dissolved upon: (a) the vote of the Limited Partners as provided in paragraph 8.3, or (b) upon sale of the Partnership Property; provided, however, if the Partnership receives a promissory note as part of the consideration for the Partnership Property, the Partnership shall continue for the sole purpose of collecting and enforcing such obligation. The Partnership shall engage in no further business thereafter other than that which is necessary to wind up the business and distribute the assets. 11,2. Proceedings Upon Dissolution. Upon the dissolution of the Partnership, the Administrative General Partner shall notify partners of such dissolution, wind up the affairs of the Partnership, liquidate the assets of the Partnership, pay or provide for the payment of all the debts, and divide the surplus, if any, among the partners according to the provisions of paragraph 11.3 hereof, subject to such adjustment as may be required by the Partnership's accountant in accordance with generally accepted accounting principles. If after the liquidation and distribution, any Partner or Partners would have a negative Capital Account, net income, if any, resulting from the liquidation shall first be allocated to that Partner or those Partners on a pro rata basis in the amount of the deficit and the remaining net income to the Partners in proportion to their receipt, or entitlement to receipt of the proceeds of liquidation. If after that allocation a Partner has a negative Capital Account, that Partner shall contribute to the Partnership cash in the amount of the remaining deficit. 11.3. Distributions on Dissolution. The assets of the Partnership shall be applied in the following order of priority: 11.3.1. To the payment of debts and liabilities of the Partnership (other than any loans and advances that may have been made by any of the Partners, or amounts owing to any of the Partners) and the expenses of liquidation; 113.2. To the setting up of any reserves that the Administrative General Partner may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership, and, at the expiration of such period as the Administrative General Partner shall deem advisable, to distribute the balance thereafter remaining in die manner hereinafter provided; 113.3. Any balance then remaining will be distributed to the Partners in accordance with their respective Capital Accounts, provided that profits shall first be allocated in accordance with the provisions of Paragraph 7.3 (entitled "Allocation of Profits"), in the manner as if all the Distributable Cash were then distributed in accordance with the provisions of Paragraph 7.11 (entitled "Distributions of Cash from Capital Event"). 11.4. Assets Other Than Cash. Assets of the Partnership may be distributed in kind on the basis of the then fair market value of such assets as determined by agreement of the Partners, and if no such agreement of value is reached within 10 days, then such value shall be determined by an independent appraiser appointed by the American Arbitration Association upon application of the Administrative General Partner (the cost and expense of said appraisal to be borne by the Partnership). If agreed to by all the Partners, distributions in-kind will be made to the Initi.1 LI' A9[�OIIIOIt� - 9n11Ln I1nU 9.1.159.1.].5 80A-237 Partners as tenants-in-common. For purposes of malting such distribution only, the unrealized profit or loss on any such asset (based on its fair market value) shall be first allocated among the Partners and the distribution of the asset shall be treated as a distribution of cash equal to the fair market value of such asset. 11.5. Liquidation of Partner's Interest. Upon liquidation of any Partner's interest in the Partnership, the liquidation distributions shall be made in accordance with the positive Capital Account balances of the Partners adjusted as otherwise required by the provisions of this Agreement. A liquidation of a Partner's interest shall occur as required pursuant to Treasury Regulations Section 1.704-1 (b)(2)(ii)(g). 11,6. Reconstitution of Partnership. The Limited Partners may, upon the occurrence of any of the events described in paragraphs 8.3.6 or 11. 1, reconstitute the business of the Partnership in a new limited partnership on the terms as this Agreement provided that if all of the General Partner cease to be a General Partner other than pursuant to subdivision (b), (c) or (d) of Section 15642 of the Act, and there is no remaining or surviving General Partner, admission of a new General Partner or a decision to continue the Partnership business by reconstituting the Partnership must be approved by the affirmative vote of all of the Limited Partners. Expenses incurred in the reformation, or attempted reformation, of the Partnership shall be deemed expenses of the Partnership. 11.7. Partnership Assets. Each partner shall look solely to the assets of the Partnership for the return of his investment, and if the assets of the Partnership remaining after the discharge of all debts and liabilities of the Partnership are insufficient to return the investment of each Limited Partner, such Limited Partner shall have no recourse against the Administrative General Partners or any other Limited Partner, 12. Books and Records. The Administrative General Partner shall keep at the partnership's office the following Partnership documents; 12.1. A current list of the fall name, and last known business or residence address of each Partner, together with the contribution and share in profits and losses of each partner. 122 A copy of the Certificate of Limited Partnership and all Certificates of Amendment, and executed copies of any powers of attorney pursuant to which any certificate has been executed. 12.3. Copies of the Partnership's federal, state and local income tax or information returns and reports, if any, for the 6 most recent taxable years. 12.4. Copies of the original Agreement and all Amendments to the Agreement. 12,5. Financial statements of the Partnership for the 6 most recent fiscal years. Ini Ci Ai LP A<,Yeement - SMA Ana 9.1.159.1.11 as 80A-238 12.6. The Partnership's books and records for at least the current and past 3 fiscal years. Upon the request of a Limited Partner, the Administrative General Partner shall promptly deliver to the requesting Limited Partner, at the expense of the Partnership, copies of the documents described in items 12.1, 12.2, or 12,4 above. All other documents may be inspected and copied by a Limited Partner during normal business hours upon reasonable, prior request. Copies of any amendments to this Agreement signed pursuant to the Administrative General Partner' power of attorney shall be promptly delivered to all Partners. 13, Notices. Any notices required to be given under this Agreement shall be in writing and signed by or on behalf of the party giving the notice sent by prepaid certified or registered mail, return receipt requested, to each partner at the address set forth after his signature or such other address as may be designated by notice given as aforesaid. Service of notice shall be deemed to be effective as of the date shown on the receipt issued by the post office for such registered mail, and if such receipt is not returned, 48 hours after deposit in the United States mail. 14. Attorneys' Fees. If any party hereto files an action or proceeding concerning any provision of this Agreement or the rights and duties of any person in relation thereto, the party or parties in whose favor final judgment shall be entered shall be entitled to recover from the other party or parties his court costs and reasonable attorneys' fees. 15. Miscellaneous Provisions. 15.1. Entire Agreement. All of the agreements heretofore and contemporaneously made by the parties are contained in this Agreement and, except as provided in Paragraph 8.3 this Agreement cannot be modified in any respect except in writing executed by parties holding an aggregate majority of the Partnership interests. 15.2. Validity. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application or interpretation of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby and shall remain in full force and effect. 15.3. Waiver of Action for Partition. Each of the parties hereto irrevocably waives his right to maintain any actions for partition with respect to the Partnership Property and other investments of the Partnership. 15.4. Governing Instruments. In the event of any conflict between the provisions of this Agreement and any document executed or filed by the Administrative General Partner pursuant to the power of attorney granted to him this Agreement shall govern. 15.5. Beadings. The headings used herein are for convenience only and shall have no effect upon the interpretation of this Agreement. Whenever the context so requires, the Initial LV Agreement - Santa Ma 9.1.159.1.15 19 80A-239 singular number shall include the plural, the plural shall include the singular, the neuter gender shall include the masculine and feminine genders and vice versa, 15.6. Counterparts. This Agreement may be executed in counterparts, each of which so executed shall be deemed an original, and said counterparts together shall constitute one and the same document. 15.7. Binding Effect, This Agreement shall be binding on, and shall inure to the benefit of the heirs, legal representatives, successors, and permitted assigns of each party. 16. Limited Partners Representations. Each Limited Partner by signing below represents and warrants to the Partnership and to the Administrative General Partner that; 16.1. The Limited Partner has received such information about the partnership, as the Limited Partner deemed necessary to evaluate this investment, and a copy of this Limited Partnership Agreement, 16.2. That the Limited Partner is taking all of the Limited Partnership Interest (the "Units") listed after his name on Exhibit "A" for his own account and not as an agent, trustee, custodian or the like for any other person or with a view to or for sale in connection with a distribution thereof. Each Partner understands that the interest being purchased and sold hereunder has not been registered under the Securities Act of 1933, as amended, nor qualified under the California Corporate Securities Law of 1968, as amended, because the contemplated transaction constitutes a private offering within the meaning of Section 4(2) of the Securities Act of 1933 and Regulation D promulgated there under, and is exempt from qualification pursuant to Section 25102 (f) of the California Corporate Securities Law of 1968, as amended. 16.3. That the Limited Partner is taking the Units for investment purposes only and has no present intention to dispose of them to any other person, 16.4. That the Limited Partner has such knowledge and experience in financial and business matters that he is capable of evaluating the risks of the prospective investment. 16.5. That the Limited Partner is a person who is able to bear the economic risk of the investment. 16.6. That the Limited Partner has an adjusted gross income of at least $30,000 in the year he is subscribing and a net worth of at least $60,000; or a net worth of $100,000 or three times the initial cash investment for the Units subscribed, whichever is greater; and 16.7. That the Administrative General Partner has made available to the Limited Partner the opportunity to obtain any additional information, to the extent the Administrative General Partner possesses such information or can acquire without unreasonable effort or expense, necessary to verify the accuracy of any information contained herein; and Ynllial LP Agr.enrcnt - Santa Ana 8.1,159.1.19 20 80A-240 16.8. Each Partner has been fully advised of the facts respecting the formation of the Partnership and has been given the opportunity to consult his attorney with respect to the Partnership. Each Partner hereby agrees that the offer and sale of the interest to it does not involve any public offering of such interest; and 16.9. The Limited Partner understands that there is no public market for the Units and none is expected to develop and he must continue to bear the economic risk of this investment for an indefinite period, Initial TP Agrenment - Santa Ana 9,1.159 1.15 21 80A-241 Dated: September 1, 2015 General Partners: AMCAL Multi--Il�tsing'fwo LLC, a California limit lability company BY:—. Percival Limited Partners: For: AMCAL Enterprises, Inc., a California alifornia corporation jun Na President Initial LP Agreement - Santa Ann 9.1.199.1.15 22 80A-242 EXHIBIT "A" AMCAL 1440 SANTA ANA FUND) L.P. CAPITAL CONTRIBUTION AND PARTNERSHIP INTEREST Column 1 Column 2 CAPITAL NAME OF PARTNER CONTRIBUTIONS % OF INTEREST % OF PROFIT AMCAL Multi -Housing Two LLC $ 1.00 1.00 1.00 an Administrative General Partner AMCAL Enterprises, Inc. $ 99.00 99.00 99.00 Limited Partner TO'T'AL: $ 100.00 100.00 100.00 Ynitlal LP AgrOOMnt - Santa Ana 9A.199.1.15 23 80A-243 EXHIBIT "B" AMCAL 1440 SANTA ANA FUND, L.P. LEGAL DESCRTPTIO'N All that certain real property situated in the County of Orange, State of California, described as follows: Parcel 1 The Easterly 112.51 feet of the Westerly 437.51 feet of that portion of land allotted to N.O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the Final Decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B" Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the center lines of First Street and Mc Clay Street, as shown on a Map filed in Book 47 Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860 Page 4 of Official Records; Thence South 00 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89° 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Mc Clay Street; Thence North 0° 06'40" West 398.34 feet to the point of beginning. Excepting therefrom, that portion of the North 71.00 feet as described in the Deed to the City of 1440 Santa Ana, recorded April 15, 1960 in Book 5196, Page 381 of Official Records. Parcel 2 A non-exclusive easement for ingress and egress over the South 25 feet of the Westerly 325 feet of that portion of the land allotted to N,O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: initial LV hVeement - Santa Ana 9.1.159.1.15 24 80A-244 Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89° 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 0° 06' 48" West 398.34 feet to the point of beginning. Parcel 3: The Westerly 175.00 feet of the Easterly 375.00 feet of that portion of the land allotted to N.O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, California, described as follows: Beginning at the intersection of the centerline of First Street and Me Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West San Bernardino Base and Meridian; Thence North 89° 10' 10" East 812.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 0° 06' 40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89' 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Me Clay Street; Thence North 00 06'48" West 398.34 feet to the point of beginning. Excepting therefrom, the South 21 feet of the North 71 feet thereof. Parcel 4: A non-exclusive easement for ingress and egress over the South 25 feet of that portion of the land allotted to N,O. Stafford and C. Tustin, in the City of 1440 Santa Ana, County of Orange, State of California, as described in the final decree of partition of the Rancho Santiago De 1440 Santa Ana, which was entered September 12, 1868 in Book "B", Page 410 of Judgments of the District Court of the 17th Judicial District, in and for Los Angeles County, Initial c" Agreement - Santa Ana 9.1.159.1.14 25 80A-245 California, described as follows Beginning at the intersection of the centerline of First Street and Mc Clay Street, as shown on a Map filed in Book 47, Page 32 of Record of Surveys, in the Office of the County recorder of said County, California, said point being the Northwest corner of Section 17, Township 5 South, Range 9 West, San Bernardino Base and Meridian; Thence North 890 10' 10" East 612.56 feet along the centerline of said First Street to the Northeast corner of land described in a Deed to Croddy Corporation and others, recorded August 28, 1959 in Book 4860, Page 4 of Official Records; Thence South 00 06'40" East 397.90 feet to the Southeast corner of said land of Croddy Corporation; Thence South 89° 08' 20" West 812.54 feet along the Southerly line of said land of Croddy Corporation to the centerline of said Mc Clay Street; Thence North 00 06' 48" West 398.34 feet to the point of beginning. Excepting therefrom, the Easterly 375.00 feet Assessor's Parcel Number: 011-154-43 Snjpial LP A9YeemMC - Banca Ma 9.1.1$9.1.15 26 80A-246 r ref i u February 7, 2017 City Council Meeting Correspondence $5A. Date of Sender/Representative Agency Corresp. 01/26/2017 Shannon Wbber I]Agendas1GWAgendasTxhlbit Correspondenoe2077LExhibik_CorTspondence 85A,doc 85A-2 cun,LtcAAJ Do, 2-C I i ,$a"ta' alp Cay cft llG4-L Pn- box 8 88, M3) .Ju,A-. a- cLKCt, C�c� q27®/ 7117 ,IAN 30 PM 3: M I CITY OF SANTA ,ANA CLERK OF CCII.N 1s_ & +J' gyp LJ P-� 71� ArU LjA l 1 -pCLAd_4ci ` jq l j ,AJ C'Avfu la CL ,AXE, h C4 j, .tCiv uv¢ da CkckQ4 c q i1 Lu - LL ���L�ti �.xQJ�✓�.s" CCL - 85A -3 85A-4